b"TORT LAW:\nCASES & CRITIQUE\n\nThomas E. Kadri\nAssistant Professor of Law\nUniversity of Georgia School of Law\nwww.thomaskadri.com\n\nFirst Edition 2021\n\n\x0c2\n\nTORT LAW\n\nLICENSE\n\nThis work is licensed under the Creative Commons Attribution-NonCommercial 4.0 International\nLicense. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc/4.0.\nUnder this CC BY-NC license, you\xe2\x80\x99re free to:\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nShare \xe2\x80\x94 copy and redistribute the material in any medium or format\nAdapt \xe2\x80\x94 remix, transform, and build upon the material\n\nAs licensor, I can\xe2\x80\x99t revoke these freedoms as long as you follow the license terms:\n\xe2\x80\xa2\n\n\xe2\x80\xa2\n\nAttribution \xe2\x80\x94 You must give appropriate credit, provide a link to the license, and indicate if\nchanges were made. You may do so in any reasonable manner, but not in any way that suggests\nI endorse you or your use.\nNonCommercial \xe2\x80\x94 You may not use the material for commercial purposes.\n\nNotices:\n\xe2\x80\xa2\n\n\xe2\x80\xa2\n\nYou don\xe2\x80\x99t have to comply with the license for elements of the material in the public domain or\nwhere your use is permitted by an applicable exception or limitation.\nNo warranties are given. The license may not give you all of the permissions necessary for your\nintended use. For example, other rights such as publicity, privacy, or moral rights may limit how\nyou use the material.\n\nThis non-commercial work also contains some copyrighted materials, the use of which I believe\nconstitutes fair use under 17 U.S.C. \xc2\xa7 107 of the U.S. Copyright Act. I\xe2\x80\x99ve included these materials because\nthey provide valuable insights to students, scholars, and researchers, without profit to anyone involved.\nThe materials serve educational and research purposes, especially by shedding light on historical realities\nbehind particular legal decisions and helping people whose learning improves with visual aids.\nThe copyright status for each image in this work is noted on the page where the image appears, unless\nan image is in the public domain. While I\xe2\x80\x99ve included images for educational and research purposes, some\nimages might be subject to different rights restrictions if used for other purposes. If you wish to use\ncopyrighted material for your own purposes, you\xe2\x80\x99re responsible for determining and satisfying any rights\nrestrictions, including obtaining any necessary permissions from the copyright owner. If you believe I\xe2\x80\x99ve\nincluded material that infringes your copyright, please contact me at tek@uga.edu.\n\nFor Nat\xc3\xa1lia, Popover, and Pa\xc3\xa7oca,\nwho woke me up early so I could\nwork on this book before class.\n\n\x0cCASES & CRITIQUE\n\n3\n\nTABLE OF CONTENTS\nINTRODUCTION................................................................................................................................................ 4\nCHAPTER 1: INTENTIONAL TORTS ................................................................................................................... 6\n\nA.\nB.\nC.\nD.\nE.\n\nBattery................................................................................................................................................. 6\nAssault .............................................................................................................................................. 25\nConsent ............................................................................................................................................ 31\nDefense of People & Property ....................................................................................................... 38\nFalse Imprisonment ........................................................................................................................ 42\n\nCHAPTER 2: PROPERTY TORTS ....................................................................................................................... 49\n\nA.\nB.\nC.\nD.\n\nTrespass to Land ............................................................................................................................. 49\nConversion ....................................................................................................................................... 54\nTrespass to Chattels ........................................................................................................................ 57\nConsent ............................................................................................................................................ 63\n\nCHAPTER 3: COMMUNICATIONS TORTS ........................................................................................................ 69\n\nA.\nB.\n\nPublic Disclosure of Private Facts ................................................................................................ 69\nDefamation ...................................................................................................................................... 75\n\nCHAPTER 4: NEGLIGENCE .............................................................................................................................. 84\n\nA.\nB.\nC.\nD.\nE.\nF.\nG.\n\nInjury ................................................................................................................................................ 84\nDuty .................................................................................................................................................. 89\nBreach ............................................................................................................................................. 115\nCause............................................................................................................................................... 162\nNegligence Per Se .......................................................................................................................... 197\nComparative Fault ........................................................................................................................ 203\nAssumption of the Risk ................................................................................................................ 207\n\nCHAPTER 5: STRICT LIABILITY ..................................................................................................................... 222\n\nA.\n\nUltrahazardous Activities ............................................................................................................ 222\n\nCHAPTER 6: DAMAGES ................................................................................................................................. 232\n\nA.\nB.\nC.\n\nCompensatory Damages .............................................................................................................. 232\nPunitive Damages ......................................................................................................................... 243\nVicarious & Joint Liability ........................................................................................................... 249\n\nCHAPTER 7: INFLICTION OF EMOTIONAL DISTRESS .................................................................................... 256\n\nA.\nB.\n\nIntentional Infliction of Emotional Distress ............................................................................. 256\nNegligent Infliction of Emotional Distress................................................................................ 276\n\nAPPENDIX: ADDITIONAL MATERIALS .......................................................................................................... 288\n\nA.\nB.\nC.\nD.\n\nWriting for Exams ........................................................................................................................ 288\nSample Exam ................................................................................................................................. 290\nSample Syllabus ............................................................................................................................. 292\nTable of Cases & Problems .......................................................................................................... 293\n\n\x0c4\n\nTORT LAW\n\nINTRODUCTION\nA tort is a wrong. In a tort suit, the plaintiff demands a remedy by alleging that the defendant wronged\nthem. Tort law determines what counts as a tort, how plaintiffs may establish their claims, when\ndefendants may avoid liability, and which remedies plaintiffs may seek. Simply put, tort law is about civil\nlegal protection of bodily autonomy, emotional integrity, property rights, and dignitary interests.\nThis casebook explores tort law\xe2\x80\x99s practice, structure, and theory by examining a range of torts. The\ncases range from mundane and amusing disputes to serious and shocking situations. I expect you\xe2\x80\x99ll find\nthat some outcomes make sense as a matter of justice, some make sense as a matter of policy, some make\nsense as a matter of history or politics, and some make no sense at all. The best way to learn torts, I think,\nis to study a broad set of cases, thinking critically about nuanced and controversial concepts like harm,\nduty, consent, and causation. Tort law isn\xe2\x80\x99t static\xe2\x80\x94in many areas, the doctrine\xe2\x80\x99s past and present are both\nconnected and divergent. Shifting social norms, new technologies, and changes in other legal regimes can\nall shape and be shaped by tort law. I love this class, and I hope you\xe2\x80\x99ll enjoy it too.\nTHE CASEBOOK\n\nTorts is a mandatory class in every law school that I know. It\xe2\x80\x99s taught all around the country, year\nafter year, usually with substantial similarity in the topics\xe2\x80\x94and even the cases\xe2\x80\x94that professors cover.\nThis makes a good deal of sense. After all, tort law is a key part of every bar exam and one of the building\nblocks of American legal education, so it\xe2\x80\x99s unsurprising that Torts syllabi don\xe2\x80\x99t budge much over time.\nPedagogical consistency can be a virtue.\nBut despite the stability of the classic Torts curriculum, students must usually buy extortionate\ncasebooks. I say this from a position of personal experience and culpability: my professors made me buy\npricey books for my doctrinal classes as a student, and I demanded the same of my students when teaching\nfor the first time last year. This ancient law-school tradition creates huge financial burdens during a time\nwhen many students are already shouldering colossal debt to pay for tuition and living expenses.\nA few hundred bucks for a Torts casebook might seem paltry compared to the overall costs of a legal\neducation, but the expense can still pose significant financial hardships for individual students. And when\nthe costs are aggregated, the numbers are staggering. The book I used last year costs $298, meaning my\nstudents would collectively spend nearly $20,000 on Torts alone (used copies, oddly, cost $320 at the\nmoment). Multiply that by six to cover the standard first-year doctrinal curriculum, and that\xe2\x80\x99s over\n$110,000 for the sixty-five 1Ls I teach. Expand it to the entire 1L class, and it\xe2\x80\x99s closer to $350,000. That\xe2\x80\x99s\nover $1 million across the three years of students currently enrolled at my school. All that for mandatory\nfirst-year casebooks that look remarkably similar to the tomes I bought as a 1L nearly a decade ago.\nIt\xe2\x80\x99s true that some students recoup a bit by reselling books. But this partial remedy again produces\ninequities. The need to find willing buyers creates uncertainty in how students can use their casebook,\nlimiting their ability to highlight, annotate, or engage with the material in ways they find educationally\nbeneficial. Only students privileged enough to keep their old books can do as they please. Renting books\npresents similar constraints, as does relying on the free library copies that some students feel compelled\nto use. And to cap it all off, the resale market is regularly disrupted by the publication of new editions.\nI don\xe2\x80\x99t mean to be na\xc3\xafve or one-sidedly critical of traditional casebooks (and that\xe2\x80\x99s not just because\nthey\xe2\x80\x99re used\xe2\x80\x94and even authored\xe2\x80\x94by many of the people who\xe2\x80\x99ll judge my tenure file in a few years!). As\nI\xe2\x80\x99ve found, making a casebook is taxing and time-consuming work. Not everyone has the support or\ninterest to make their own materials. It\xe2\x80\x99s tempting, and indeed understandable, to rely on the expertise\nand work of generations of professors who\xe2\x80\x99ve created resources of great value. But if there\xe2\x80\x99s a path to\nmaking legal education less daunting and more inclusive, I believe we as teachers should pursue it.\nMy goal in creating this casebook is to do my part to make legal education more affordable, accessible,\nand adaptable. That\xe2\x80\x99s why I\xe2\x80\x99m making the book available to all for free. By using a CC BY-NC license,\nI\xe2\x80\x99m also inviting others to adapt these materials for their own use, so long as they adhere to the noncommerciality and attribution terms. (Anyone interested in \xe2\x80\x9cremixing\xe2\x80\x9d this book for their own purposes\nshould feel free to contact me at tek@uga.edu, including if you\xe2\x80\x99d like a more adaptable non-PDF version.)\nYou\xe2\x80\x99re welcome to print any part of this casebook if you want a hard copy to accompany the digital\nversion. If you do print it, I ask that you please be environmentally conscious by using double-sided pages.\nBecause the digital version can be easily searched, it contains no index or other finding aids that are\nconventional for printed books. You should also be able to enhance your experience with the digital\nversion by highlighting text, adding comments, and annotating it in other ways you find helpful.\nTo see the syllabus accompanying this casebook, please visit www.thomaskadri.com/torts.\n\n\x0cCASES & CRITIQUE\n\n5\n\nGIVING BACK\n\nIf you use this casebook, I hope you\xe2\x80\x99ll consider donating some of the money you\xe2\x80\x99ll save to one of the\nfollowing causes (or another cause of your choosing):\n\xe2\x80\xa2\n\nProject Safe, which works in and around the Athens community to tackle domestic\nviolence. Project Safe\xe2\x80\x99s executive director is also a Georgia Law alum!\n\n\xe2\x80\xa2\n\nProject South, which seeks to combat racial and economic injustice by cultivating social\nmovements in the South. The organization has deep ties in South Atlanta, where it\xe2\x80\x99s\nempowering communities to respond to COVID-19 and structural racism.\n\n\xe2\x80\xa2\n\nTem Gente com Fome, which distributes food, personal hygiene items, and cleaning\nproducts to families in Brazil who face hunger, poverty, and human-rights violations,\nespecially during the pandemic. The campaign reflects a simple mantra: \xe2\x80\x9cIf there are\nhungry people, give them something to eat.\xe2\x80\x9d\n\n\xe2\x80\xa2\n\nUnion of Concerned Scientists, which relies on science to solve our planet\xe2\x80\x99s pressing\nproblems. The group of nearly 250 scientists and experts is combatting climate change\nand developing sustainable ways to feed, power, and transport ourselves.\nEDITING\n\nThroughout this casebook, I\xe2\x80\x99ve prioritized readability over strict loyalty to the original texts. For\nexample, I liberally removed or amended some citations, quotation marks, headings, ellipses, brackets,\nand footnotes. While I used ellipses to indicate my own substantive omissions, I didn\xe2\x80\x99t always mark other\nedits. The casebook is designed as a pedagogical resource; if you wish to engage with the materials for\nother purposes, I\xe2\x80\x99d recommend consulting the original sources.\nI\xe2\x80\x99ve tried to include content warnings throughout this casebook, recognizing that certain topics are\nespecially likely to induce trauma or distress. While I\xe2\x80\x99ve done my best to flag these particularly unsettling\nmaterials, tort law regularly challenges us to confront difficult and disturbing issues in ways I can\xe2\x80\x99t always\npredict in advance. If you ever feel that a content warning would\xe2\x80\x99ve been valuable to you but was lacking,\nI welcome that feedback. Indeed, I welcome any reactions to this casebook, so please reach out if you\nthink important perspectives are missing or if you find errors or typos. I surely have blind spots in the\nway I present some topics, plus I lack a professional editor to catch my linguistic blunders. You can\ncontact me at tek@uga.edu with any constructive criticism.\nACKNOWLEDGMENTS\n\nI created this casebook with support from a University of Georgia Provost\xe2\x80\x99s Affordable Course Materials\nGrant. I owe huge debts of gratitude to Sarah Burns, Courtney Hogan, and Noah Nix\xe2\x80\x94their work has\nbeen invaluable, and I thank them for their care and brilliance. I truly couldn\xe2\x80\x99t have published this edition\nwithout them. For licensing advice and assistance in gathering source materials, I thank Stephen Wolfson\nand Tiffany Au at the Alexander Campbell King Law Library. Enrique Armijo offered generous tips in\nselecting defamation and privacy cases, while Margo Schlanger graciously let me adapt her materials on\nthe \xe2\x80\x9creasonable woman\xe2\x80\x9d standard. My thanks also to James Grimmelmann, whose own affordable\ncasebook, Internet Law: Cases and Problems, was inspirational to me.\nMy approach to teaching tort law is also shaped by the casebook I used as a student\xe2\x80\x94Tort Law:\nResponsibilities and Redress, now co-authored by John Goldberg, Leslie Kendrick, Anthony Sebok, and\nBenjamin Zipursky, whose approaches to torts pedagogy and scholarship I greatly admire. When I taught\nthis course for the first time, I also greatly benefited from the advice and materials I received from\nElizabeth Chamblee Burch, Rebecca Crootof, Woodrow Hartzog, Claudia Haupt, Don Herzog, Douglas\nKysar, Andrew Selbst, Jed Shugerman, Elizabeth Weeks, Mike Wells, and John Fabian Witt.\nLastly, I\xe2\x80\x99m immensely grateful to Scott Hershovitz, who made me love Torts as my professor in 2012\nand then guided me as I taught it for the first time.\nThomas Kadri\nOctober 2021\n\n\x0c6\n\nTORT LAW\n\nCHAPTER\n\n1:\n\nINTENTIONAL TORTS\n\nA. Battery\nALCORN v. MITCHELL\nSupreme Court of Illinois (1872)\nSheldon, Justice:\n\n\xc3\xa3\n\nThe ground mainly relied on for the reversal of the\njudgment in this case is, that the damages are excessive,\nbeing $1,000.\nThe case presented is this: There was a trial of an\naction of trespass between the parties, wherein the\nappellee [Andy Mitchell] was defendant, in the circuit\ncourt of Jasper county. At the close of the trial the court\nadjourned, and, immediately upon the adjournment, in\nthe court room, in the presence of a large number of\npersons, the appellant [William Alcorn] deliberately spat in the face of the appellee.\nSo long as damages are allowable in any civil case, by way of punishment or for the sake of\nexample, the present, of all cases, would seem to be a most fit one for the award of such damages.\nThe act in question was one of the greatest indignity, highly provocative of retaliation by force,\nand the law, as far as it may, should afford substantial protection against such outrages, in the way\nof liberal damages, that the public tranquillity may be preserved by saving the necessity of resort to\npersonal violence as the only means of redress.\nSuitors, in the assertion of their rights, should be allowed approach to the temple of justice\nwithout incurring there exposure to such disgraceful indignities, in the very presence of its ministers.\nIt is customary to instruct juries that they may give vindictive damages where there are\ncircumstances of malice, wilfulness, wantonness, outrage and indignity attending the wrong\ncomplained of. The act in question was wholly made up of such qualities. It was one of pure\nmalignity, done for the mere purpose of insult and indignity.\nAn exasperated suitor has indulged the gratification of his malignant feelings in this despicable\nmode. The act was the very refinement of malice. [Alcorn] appears to be a man of wealth; we can\nnot say that he has been made to pay too dearly for the indulgence.\nWe have carefully looked into the instructions given and refused, and do not perceive any\nsubstantial error in respect to them\xe2\x80\xa6. Judgment affirmed.\n1.\n\nQUESTIONS\nPut Your Money Where Your Mouth Is: Should Alcorn have to pay Mitchell $1,000?\nWhy or why not?\n\n2.\n\nAngry Alcorn: The court mentions that Alcorn spat \xe2\x80\x9cdeliberately\xe2\x80\x9d and with \xe2\x80\x9cmalice.\xe2\x80\x9d\nDo his intent and motivation really matter? Should they?\n\n3.\n\nSpit for Tat: What do we accomplish by making Alcorn pay Mitchell?\n\n\xc3\xa3\n\nWoodley Wonder Works, No Spitting, No Smoking (CC BY 2.0).\n\n\x0cCASES & CRITIQUE\n\n7\n\nLEICHTMAN v. WLW JACOR COMMUNICATIONS, INC.\nCourt of Appeals of Ohio (1994)\nPer Curiam:\n\n\xc3\xa3\n\nThe plaintiff-appellant, Ahron Leichtman,\nappeals from the trial court\xe2\x80\x99s order dismissing his\ncomplaint against the defendants-appellees, WLW\nJacor Communications (\xe2\x80\x9cWLW\xe2\x80\x9d), William\nCunningham and Andy Furman, for battery,\ninvasion of privacy, and a violation of Cincinnati\nBd. of Health Reg. No. 00083. In his single\nassignment of error, Leichtman contends that his\ncomplaint was sufficient to state a claim upon\nwhich relief could be granted and, therefore, the\ntrial court was in error when it granted the defendants\xe2\x80\x99 Civil Rule 12(B)(6) motion. We agree in part.\nIn his complaint, Leichtman claims to be \xe2\x80\x9ca nationally known\xe2\x80\x9d antismoking advocate.\nLeichtman alleges that, on the date of the Great American Smokeout, he was invited to appear on\nthe WLW Bill Cunningham radio talk show to discuss the harmful effects of smoking and breathing\nsecondary smoke. He also alleges that, while he was in the studio, Furman, another WLW talk-show\nhost, lit a cigar and repeatedly blew smoke in Leichtman\xe2\x80\x99s face \xe2\x80\x9cfor the purpose of causing physical\ndiscomfort, humiliation and distress.\xe2\x80\x9d\nUnder the rules of notice pleading, Civil Rule 8(A)(1) requires only \xe2\x80\x9ca short and plain statement\nof the claim showing that the pleader is entitled to relief.\xe2\x80\x9d When construing a complaint for failure\nto state a claim, under Rule 12(B)(6), the court assumes that the factual allegations on the face of the\ncomplaint are true. For the court to grant a motion to dismiss, it must appear beyond doubt from\nthe complaint that the plaintiff can prove no set of facts entitling him to recovery. A court cannot\ndismiss a complaint under Rule 12(B)(6) merely because it doubts the plaintiff will prevail\xe2\x80\xa6.\nLeichtman contends that Furman\xe2\x80\x99s intentional act constituted a battery. The Restatement of the\nLaw 2d, Torts (1965), states:\nAn actor is subject to liability to another for battery if\n(a) he acts intending to cause a harmful or offensive contact with the person of the\nother\xe2\x80\xa6, and\n(b) a harmful contact with the person of the other directly or indirectly results[; or]\n[c] an offensive contact with the person of the other directly or indirectly results.\nIn determining if a person is liable for a battery, the Supreme Court has adopted the rule that\ncontact which is offensive to a reasonable sense of personal dignity is offensive contact. It has defined\n\xe2\x80\x9coffensive\xe2\x80\x9d to mean \xe2\x80\x9cdisagreeable or nauseating or painful because of outrage to taste and\nsensibilities or affronting insultingness.\xe2\x80\x9d State v. Phipps, 389 N.E.2d 1128 (Ohio 1979). Furthermore,\ntobacco smoke, as \xe2\x80\x9cparticulate matter,\xe2\x80\x9d has the physical properties capable of making contact.\nAs alleged in Leichtman\xe2\x80\x99s complaint, when Furman intentionally blew cigar smoke in\nLeichtman\xe2\x80\x99s face,\xe2\x80\xa6 he committed a battery. No matter how trivial the incident, a battery is\nactionable, even if damages are only one dollar. The rationale is explained by Roscoe Pound in his\nessay \xe2\x80\x9cLiability\xe2\x80\x9d [1922]: \xe2\x80\x9cIn civilized society men must be able to assume that others will do them\nno intentional injury\xe2\x80\x94that others will commit no intentioned aggressions upon them.\xe2\x80\x9d\nOther jurisdictions also have concluded that a person can commit a battery by intentionally\ndirecting tobacco smoke at another. We do not, however, adopt or lend credence to the theory of a\n\xe2\x80\x9csmoker\xe2\x80\x99s battery,\xe2\x80\x9d which imposes liability if there is substantial certainty that exhaled smoke will\npredictably contact a nonsmoker. Also, whether the \xe2\x80\x9csubstantial certainty\xe2\x80\x9d prong of intent from the\nRestatement of Torts translates to liability for secondary smoke via the intentional tort doctrine in\nemployment cases as defined by the Supreme Court in Fyffe v. Jeno\xe2\x80\x99s, Inc., 570 N.E.2d 1108 (Ohio\n1991), need not be decided here because Leichtman\xe2\x80\x99s claim for battery is based exclusively on\n\xc3\xa3\n\nMendhak, Why Have You Abandoned Us? (CC BY-SA 2.0).\n\n\x0c8\n\nTORT LAW\n\nFurman\xe2\x80\x99s commission of a deliberate act. Finally, because Leichtman alleges that Furman\ndeliberately blew smoke into his face, we find it unnecessary to address offensive contact from\npassive or secondary smoke under the \xe2\x80\x9cglass cage\xe2\x80\x9d defense of McCracken v. Sloan, 252 S.E.2d 250\n(N.C. Ct. App. 1979), relied on by the defendants.\nNeither Cunningham nor WLW is entitled to judgment on the battery claim under Rule 12(B)(6).\nConcerning Cunningham, at common law, one who is present and encourages or incites commission\nof a battery by words can be equally liable as a principal. Leichtman\xe2\x80\x99s complaint states, \xe2\x80\x9cAt Defendant\nCunningham\xe2\x80\x99s urging, Defendant Furman repeatedly blew cigar smoke in Plaintiff\xe2\x80\x99s face.\xe2\x80\x9d\nWith regard to WLW, an employer is not legally responsible for the intentional torts of its\nemployees that do not facilitate or promote its business. However, whether an employer is liable\nunder the doctrine of respondeat superior because its employee is acting within the scope of\nemployment is ordinarily a question of fact. Accordingly, Leichtman\xe2\x80\x99s claim for battery with the\nallegations against the three defendants in the second count of the complaint is sufficient to\nwithstand a motion to dismiss under Rule 12(B)(6).\nBy contrast, the first and third counts of Leichtman\xe2\x80\x99s complaint do not state claims upon which\nrelief can be granted.\xe2\x80\xa6 In his first count, Leichtman alleged a tortious invasion of his privacy. A\nclaim for invasion of privacy may involve any one of four distinct torts. The tort that is relevant here\nrequires some substantial intrusion into a plaintiff\xe2\x80\x99s solitude, seclusion, habitation, or affairs that\nwould be highly offensive to a reasonable person. Leichtman acknowledges that he willingly entered\nthe WLW radio studio to make a public radio appearance with Cunningham, who is known for his\nblowtorch rhetoric. Therefore, Leichtman\xe2\x80\x99s allegations do not support his assertion that Furman,\nCunningham, or WLW intruded into his privacy.\nIn his third count, Leichtman attempts to create a private right of action for violation of\nCincinnati Bd. of Health Reg. No. 00083, which makes it illegal to smoke in designated public places.\nEven if we are to assume, for argument, that a municipal regulation is tantamount to public policy\nestablished by a statute enacted by the General Assembly, the regulation has created rights for\nnonsmokers that did not exist at common law. Therefore, because sanctions also are provided to\nenforce the regulation, there is no implied private remedy for its violation.\nArguably, trivial cases are responsible for an avalanche of lawsuits in the courts. They delay cases\nthat are important to individuals and corporations and that involve important social issues. The\nresult is justice denied to litigants and their counsel who must wait for their day in court. However,\nabsent circumstances that warrant sanctions for frivolous appeals under Appellate Rule 23, we refuse\nto limit one\xe2\x80\x99s right to sue. Section 16, Article I, Ohio Constitution states, \xe2\x80\x9cAll courts shall be open,\nand every person, for an injury done him in his land, goods, person, or reputation, shall have remedy\nby due course of law, and shall have justice administered without denial or delay.\xe2\x80\x9d\nThis case emphasizes the need for some form of alternative dispute resolution operating totally\noutside the court system as a means to provide an attentive ear to the parties and a resolution of\ndisputes in a nominal case. Some need a forum in which they can express corrosive contempt for\nanother without dragging their antagonist through the expense inherent in a lawsuit. Until such an\nalternative forum is created, Leichtman\xe2\x80\x99s battery claim, previously knocked out by the trial judge in\nthe first round, now survives round two to advance again through the courts into round three.\xe2\x80\xa6\n1.\n\nQUESTIONS\nBad Timing: Does it matter that this happened during the Great American Smokeout?\n\n2.\n\nWho\xe2\x80\x99s to Blame? Furman blew the smoke, so why did Leichtman sue Cunningham and\nWLW?\n\n3.\n\nWhat\xe2\x80\x99s to Gain? Why do you think Leichtman brought this lawsuit? For publicity?\nBecause he genuinely felt humiliated?\n\n\x0cCASES & CRITIQUE\n\n9\n\nCECARELLI v. MAHER\nCourt of Common Pleas New Haven County (1943)\nCullinan, Judge:\n\n\xc3\xa3\n\nA willful, apparently unprovoked, and thoroughly\nunjustifiable assault represents the background of this\nlitigation. The plaintiff, a personable, well-spoken\nand well-groomed young man, 25 years of age, alleges\nthat the defendant George Maher, in concert with\nJohn Heinz and an unknown assailant, beat and\nassaulted him with intense ferocity to produce most\nserious physical consequences.\nOn the evening of August 1, 1943, the plaintiff\nattended a public dance at Sea Cliff, New Haven, at\nthe conclusion of which three young ladies requested\nhim to drive them to their homes. His willingness to meet this request appears to have provoked the\nanger and wrath of the defendant and his two companions, who, at a secluded and lonely spot\nadjacent to the dance hall, set upon him to administer a severe, and painful beating. Fists and\ndangerous instruments constituted the implements of aggressive warfare.\nIn consequence, the plaintiff\xe2\x80\x99s upper right central and upper right lateral teeth and roots were\nsevered from their sockets; his upper left central, lower right central, and lower right lateral teeth\nwere so destroyed as to necessitate ultimate removal; his upper lip was severely lacerated, requiring\nsutures and resulting in an involvement of the nasal septum; his nose and left eye were abrased and\ncontused; and his right arm, right shoulder, and right side became exceedingly sore and tender as a\nresult of a vicious kicking process. Thereafter, the plaintiff required emergency hospital treatment\nand a complete restoration of the dental structures with the replacement of five teeth. In addition,\nthe plaintiff was forced to absent himself from his employment for a complete week, experiencing\nacute pain for an extended period after his return to work.\nThe terrifying and violent episode had its basis in the ungovernable tempers of these young men,\nwho, after having had their attentions spurned by three young women, struck fiercely, suddenly, and\nstealthily at the innocent plaintiff. Both the defendant Maher and his companion Heinz were\nsubsequently arrested and offered guilty pleas to assault charges before the City Court of New\nHaven. The third assailant is unknown to the plaintiff and his identity has never been disclosed by\nhis colleagues in violence.\nThis action originally joined both Maher and Heinz as codefendants. Subsequently, the action\nwas withdrawn as to Heinz, and a default judgment has been entered against Maher by reason of his\nfailure to appear. Thus, damages are now to be assessed against Maher alone.\nBy way of special damage, the plaintiff has lost in wages and has become obligated to expend for\ndental and medical treatment approximately $315. To this sum may be added $2,000, representing\nfair and reasonable compensation for his pain, suffering, and permanent injury. Judgment may enter\nfor the plaintiff to recover of the defendant $2,315, together with taxable costs.\n1.\n2.\n\n\xc3\xa3\n\nQUESTIONS\nTort-Crim I: What\xe2\x80\x99s the tort in this case? (Hint: the word doesn\xe2\x80\x99t appear in the opinion.)\nTort-Crim II: Maher and Heinz pled guilty to criminal charges, so what\xe2\x80\x99s the point of\nhaving a tort suit?\n\nState Library Victoria Collections, Swiss Polka Dancing (CC BY-NC 2.0).\n\n\x0c10\n\nTORT LAW\n\nPAUL v. HOLBROOK\nFlorida Fifth District Court of Appeal of Florida (1997)\nOrfinger, Judge:\n\n\xc3\xa3\n\nMeredith A. Paul (\xe2\x80\x9cPaul\xe2\x80\x9d) appeals an order of the trial court granting\nsummary judgment in favor of Professional Medical Products, Inc.\n(\xe2\x80\x9cPMP\xe2\x80\x9d) and Paul Holbrook (\xe2\x80\x9cHolbrook\xe2\x80\x9d) on Paul\xe2\x80\x99s claims against\nHolbrook and PMP for assault, battery, intentional infliction of\nemotional distress, negligent infliction of emotional distress and\nnegligent hiring and retention. We affirm the entry of summary\njudgment in all respects except as to the battery claim against Holbrook.\nOn that single claim, we reverse.\nPaul and Holbrook are former employees of PMP. Paul testified that\nHolbrook was her co-worker and not her supervisor. On various\noccasions, Paul worked alone with Holbrook. During some of these\ntimes, Paul alleges that Holbrook harassed her by asking that she wear\nrevealing clothing and suggesting that they engage in sexual relations.\nPaul claims that on two occasions, Holbrook came up behind her while she was working and tried\nto massage her shoulders. On both occasions, Paul immediately pulled away and told Holbrook to\nleave, which he did. After Paul complained to PMP\xe2\x80\x99s management, she and Holbrook never again\nworked the same shifts and his improper behavior toward her ended.\nWhile Paul takes issue with the trial court\xe2\x80\x99s judgment in its entirety, we find merit only in Paul\xe2\x80\x99s\ncontention that the trial judge erred in granting summary judgment on her battery claim against\nHolbrook, finding that Holbrook\xe2\x80\x99s contact with Paul amounted to no more than a \xe2\x80\x9ccasual touching\xe2\x80\x9d\nand concluding that Paul failed to produce evidence establishing intent.\nA battery consists of the infliction of a harmful or offensive contact upon another with the intent\nto cause such contact or the apprehension that such contact is imminent. Professor Prosser\xe2\x80\x99s treatise\nexplains that the tort of battery exists to protect the integrity of the person. As Prosser & Keeton\nwrote in [W. Page Keeton, et al., Prosser and Keeton on Torts \xc2\xa7 9 (5th ed.1984)]:\nProof of the technical invasion of the integrity of the plaintiff\xe2\x80\x99s person by even an\nentirely harmless, but offensive contact entitles the plaintiff to vindication of the\nlegal right by an award of nominal damages, and the establishment of the tort\ncause of action entitles the plaintiff also to compensation for the resulting mental\ndisturbance, such as fright, revulsion or humiliation.\nOnce a contact has been established, its character becomes the focus:\nThe element of personal indignity involved always has been given considerable\nweight. Consequently, the defendant is liable not only for contact which do actual\nharm, but also for those relatively trivial ones which are merely offensive and\ninsulting\xe2\x80\xa6. The time and place, and the circumstances under which the act is\ndone, will necessarily affect its unpermitted character, and so will the relations\nbetween the parties. A stranger is not to be expected to tolerate liberties which\nwould be allowed by an intimate friend. But unless the defendant has special\nreason to believe that more or less will be permitted by the individual plaintiff, the\ntest is what would be offensive to an ordinary person not unduly sensitive to\npersonal dignity.\nId. Offensiveness is an essential element of the tort. The trial court, relying on Gatto v. Publix\nSupermarket, Inc., 387 So.2d 377 (Fla. 3d Dist. Ct. App. 1980), concluded that, as a matter of law,\nHolbrook\xe2\x80\x99s actions were not offensive. The plaintiff in Gatto testified that a store employee, in\nattempting to retrieve allegedly stolen items from the plaintiff\xe2\x80\x99s hands, \xe2\x80\x9ccame into contact with\neither part of [his] palm or [his] wrist or [his] arms.\xe2\x80\x9d The third district concluded that this was not\n\xc3\xa3\n\nBrittanie Shey, Backrub (CC BY-NC-SA 2.0).\n\n\x0cCASES & CRITIQUE\n\n11\n\nevidence of an offensive contact. But, the act of approaching a co-worker from behind while on the\njob and attempting to massage her shoulders is, in the circumstances of this case, not capable of such\nsummary treatment. On these facts, offensiveness is a question for the trier of fact to decide.\nThe trial court also found that Paul failed to produce evidence establishing Holbrook\xe2\x80\x99s intent to\ncommit a battery. Proof of intent to commit battery is rarely subject to direct proof, but must be\nestablished based on surrounding circumstances. Based on the record before this court, a jury could\nreasonably infer that Holbrook intended to touch Paul in a matter that would constitute a battery.\nNo evidence of an intention to cause harm is necessary.\nThe trial court properly granted summary judgment against Paul in all respects except with\nregard to the battery claim against Holbrook. On that claim, we reverse. In all other respects, we\naffirm the trial court\xe2\x80\x99s judgment.\n1.\n\nQUESTIONS\nProcedural Precision: Did the appeals court actually conclude that Holbrook\xe2\x80\x99s actions\nconstituted battery?\n\n2.\n\nIt\xe2\x80\x99s All Circumstantial: Was Holbrook\xe2\x80\x99s attempt to massage Paul offensive? What if he\ndid the same thing on a date instead of at work?\n\n3.\n\nAlcorn Revisited: What would the justices in Alcorn have thought of this case in 1872?\nHow do you think they would have decided it?\nTECH BRO PROBLEM\n\nJanice worked as a salesperson at Tesla in Alpharetta for fifteen years. The environment at Tesla\nwas very laid back. Foul language, sexual innuendo, and dirty jokes were often in the airways. Janice\nwas also known to give massages, back scratches, and hugs to her coworkers during work hours, and\nshe often received the same in return. Leon\xe2\x80\x94Janice\xe2\x80\x99s boss\xe2\x80\x94often poked fun at Janice and\npropositioned her for sex. Beyond these verbal encounters, Leon\xe2\x80\x99s hands once lingered on Janice\xe2\x80\x99s\nrear as he hugged her. Janice has now sued Leon for battery.\n(a) Was Leon\xe2\x80\x99s contact with Janice offensive for purposes of battery liability?\n(b) Is the environment at Tesla a relevant part of this inquiry?\n(c) Are Janice\xe2\x80\x99s own actions toward her coworkers relevant? What if she had been tactile\nwith Leon in the past?\n(d) Does the outcome you reached sit well with you? Why or why not?\nCOLE v. HIBBERD\nCourt of Appeals of Ohio (1994)\nYoung, Judge:\nPlaintiff-appellant, Debbie L. Cole, appeals the\njudgment of the Warren County Common Pleas Court\ngranting summary judgment in favor of defendantappellee, Sheri L. Hibberd.\nCole filed a personal injury complaint against\nHibberd on June 11, 1993, based on an incident that\noccurred on June 15, 1991. She set forth the operative\nfacts of this action in paragraph two of her complaint:\n\xe2\x80\x9cAt said time and place, defendant negligently struck\nsaid plaintiff in the lower lumbar area, which negligence directly caused injuries and damages\nhereinafter set forth.\xe2\x80\x9d Cole described Hibberd\xe2\x80\x99s actions more completely in her deposition taken on\nAugust 12, 1993. At the deposition, Cole described the incident as follows:\nThe Hibberds had been drinking and Sheri was acting a little rambunctious. While\nI was standing there leaning over, I had ahold of my daughter with one hand and\n\n\x0c12\n\nTORT LAW\n\nmy niece with the other, I was holding them by the hand, I leaned over to look at\nher children in her stroller, and she hauled off and kicked me.\nHibberd\xe2\x80\x99s attorney asked Cole to describe the incident in more detail, and she responded:\nWell, she kicked me. And I stood up and said, damn it, Sheri, that hurt. She started\nlaughing. And\xe2\x80\xa6 [Hibberd\xe2\x80\x99s husband] Gary called me something foul and started\nlaughing and thought it was funny. And I told my husband, I said, come on. I was,\nI was extremely hot about it. She hurt me.\nWhen asked whether she believed Hibberd\xe2\x80\x99s action was intentional or accidental, Cole stated:\nI\xe2\x80\x99d say she didn\xe2\x80\x99t, she meant to kick me. I mean, she didn\xe2\x80\x99t mean to hurt me, she\nwas just horsing around. I guess she thought it wouldn\xe2\x80\x99t hurt me\xe2\x80\xa6. No, she meant\nto kick me playingly, but I don\xe2\x80\x99t think she meant to hurt me like she did. She\nbasically thought it was funny. I mean, that\xe2\x80\x99s how, how she was, really.\nR.C. 2305.111 establishes a one-year statute of limitations for claims involving assault and\nbattery. On the other hand, R.C. 2305.10 requires that an action for bodily injury must be brought\nwithin two years after the cause arises. Cole filed her complaint more than one year, but less than\ntwo years after June 15, 1991, the date Hibberd kicked her.\nHibberd filed a motion for summary judgment contending that her alleged actions constituted\na battery which was no longer actionable under R.C. 2305.111 since the complaint was not filed\nwithin one year of the incident. The trial court granted Hibberd\xe2\x80\x99s motion for summary judgment by\nentry filed January 14, 1994.\nIn a single assignment of error, Cole contends that the court erred in concluding that her claim\namounted to an action in assault and battery instead of negligence. Basically, Cole argues that a\ngenuine issue of material fact exists as to whether Hibberd made intentional, offensive contact with\nCole\xe2\x80\xa6. In determining which limitation period will apply, courts must look to the actual nature or\nsubject matter of the case, rather than to the form in which the action is pleaded. The grounds for\nbringing the action are the determinative factors, the form is immaterial.\nIn Love v. Port Clinton, 524 N.E.2d 166 (Ohio 1988), the Ohio Supreme Court stated that \xe2\x80\x9cwhere\nthe essential character of an alleged tort is an intentional, offensive touching, the statute of\nlimitations for assault and battery governs even if the touching is pleaded as an act of negligence. To\nhold otherwise would defeat the assault and battery statute of limitations.\xe2\x80\x9d\nAn individual is liable for battery when he or she acts intending to cause offensive or harmful\ncontact, and such contact results. \xe2\x80\x9cOffensive contact\xe2\x80\x9d is contact that would be offensive to a\nreasonable sense of personal dignity.\nCole insists that Hibberd did not act with an intention to cause harm. However, it is the\nintentional nature of the contact with the plaintiff that controls the definition, not the intent to cause\nactual harm or injury.\nConstruing the facts most strongly in favor of Cole, this court concludes that the essential\ncharacter of her complaint is grounded in the intentional tort of assault and battery. From the\nevidence presented, reasonable minds can only conclude that Hibberd intended to kick Cole. We\nalso conclude that Hibberd\xe2\x80\x99s contact, as testified to by Cole in her deposition, would be considered\noffensive to a reasonable sense of personal dignity. It is irrelevant to this determination whether or\nnot Hibberd intended to cause injury.\nIn this case, the statute of limitations for assault and battery applies over the statute of limitations\nfor bodily injury. Accordingly, Cole had only one year from the time of the incident, or until June\n15, 1991, to file this lawsuit. The filing of this suit on June 11, 1993, was therefore untimely.\nAppellant\xe2\x80\x99s assignment of error is overruled. Judgment affirmed.\nJones, Judge, dissenting:\nSummary judgment was simply inappropriate. A factual question existed with respect to\nHibberd\xe2\x80\x99s intentions. A jury could, would, and should find that Hibberd\xe2\x80\x99s playful \xe2\x80\x9ckick in the rear\xe2\x80\x9d\nwas not intended to cause offensive or harmful conduct. Hibberd wasn\xe2\x80\x99t assaulting her friend Cole\n\n\x0cCASES & CRITIQUE\n\n13\n\nany more than one would \xe2\x80\x9cassault\xe2\x80\x9d a friend by slapping him on the back. Hibberd\xe2\x80\x99s \xe2\x80\x9ckick\xe2\x80\x9d was\nsimply misdirected, striking the coccyx, and a jury could certainly conclude that such was merely\nnegligence. The two-year statute of limitations [for negligence should apply, rather than the oneyear limit for assault and battery].\n1.\n2.\n\nQUESTIONS\nCruel Intentions: Did Hibberd intend to harm or offend Cole? Is that the intent that\nmatters?\nTime Is of the Essence: Notice something seemingly odd about this case: Hibberd is\ntrying to convince the court that she committed battery. Why is she doing that?\nVOSBURG v. PUTNEY\nSupreme Court of Wisconsin (1891)\n\nLyon, Justice:\n\n\xc3\xa3\n\nThe action was brought to recover damages for an\nassault and battery, alleged to have been committed\nby the defendant upon the plaintiff on February 20,\n1889\xe2\x80\xa6. At the date of the alleged assault the plaintiff\nwas a little more than fourteen years of age, and the\ndefendant a little less than twelve years of age.\nThe injury complained of was caused by a kick\ninflicted by defendant upon the leg of the plaintiff, a\nlittle below the knee. The transaction occurred in a\nschool-room in Waukesha, during school hours,\nboth parties being pupils in the school. A former trial\nof the cause resulted in a verdict and judgment for the\nplaintiff for $2,800. The defendant appealed from\nsuch judgment to this court, and the same was\nreversed for error, and a new trial awarded.\nThe case has been again tried in the circuit court, and the trial resulted in a verdict for plaintiff\nfor $2,500.\xe2\x80\xa6 On the last trial the jury found a special verdict, as follows:\n\xe2\x80\x9c(1) Had the plaintiff during the month of January, 1889, received an injury just\nabove the knee, which became inflamed, and produced pus? Answer. Yes. (2) Had\nsuch injury on the 20th day of February, 1889, nearly healed at the point of the\ninjury? A. Yes. (3) Was the plaintiff, before said 20th of February, lame, as the\nresult of such injury? A. No. (4) Had the tibia in the plaintiff\xe2\x80\x99s right leg become\ninflamed or diseased to some extent before he received the blow or kick from the\ndefendant? A. No. (5) What was the exciting cause of the injury to the plaintiff\xe2\x80\x99s\nleg? A. Kick. (6) Did the defendant, in touching the plaintiff with his foot, intend\nto do him any harm? A. No. (7) At what sum do you assess the damages of the\nplaintiff? A. $ 2,500.\xe2\x80\x9d\xe2\x80\xa6\nThereupon judgment for plaintiff for $2,500 damages and costs of suit was duly entered. The\ndefendant appeals from the judgment\xe2\x80\xa6.\nThe jury having found that the defendant, in touching the plaintiff with his foot, did not intend\nto do him any harm, counsel for defendant maintain that the plaintiff has no cause of action\xe2\x80\xa6. In\nsupport of this proposition counsel quote from 2 Greenl. Ev. \xc2\xa7 83, the rule that \xe2\x80\x9cthe intention to do\nharm is of the essence of an assault.\xe2\x80\x9d Such is the rule, no doubt, in actions or prosecutions for mere\nassaults. But this is an action to recover damages for an alleged assault and battery. In such case the\nrule is correctly stated, in many of the authorities cited by counsel, that plaintiff must show either\n\xc3\xa3\n\nTheir History, Grazed Knee (CC BY-NC-SA 2.0).\n\n\x0c14\n\nTORT LAW\n\nthat the intention was unlawful, or that the defendant is in fault. If the intended act is unlawful, the\nintention to commit it must necessarily be unlawful. Hence, as applied to this case, if the kicking of\nthe plaintiff by the defendant was an unlawful act, the intention of defendant to kick him was also\nunlawful.\nHad the parties been upon the play-grounds of the school, engaged in the usual boyish sports,\nthe defendant being free from malice, wantonness, or negligence, and intending no harm to plaintiff\nin what he did, we should hesitate to hold the act of the defendant unlawful, or that he could be held\nliable in this action. Some consideration is due to the implied license of the play-grounds. But it\nappears that the injury was inflicted in the school, after it had been called to order by the teacher,\nand after the regular exercises of the school had commenced. Under these circumstances, no implied\nlicense to do the act complained of existed, and such act was a violation of the order and decorum\nof the school, and necessarily unlawful. Hence we are of the opinion that, under the evidence and\nverdict, the action may be sustained.\nThe plaintiff testified, as a witness in his own behalf, as to the circumstances of the alleged injury\ninflicted upon him by the defendant, and also in regard to the wound he received in January, near\nthe same knee, mentioned in the special verdict. The defendant claimed that such wound was the\nproximate cause of the injury to plaintiff\xe2\x80\x99s leg, in that it produced a diseased condition of the bone,\nwhich disease was in active progress when he received the kick, and that such kick did nothing more\nthan to change the location, and perhaps somewhat hasten the progress, of the disease.\xe2\x80\xa6 The\nfollowing question was then propounded to Dr. Philler[, the plaintiff\xe2\x80\x99s witness]: \xe2\x80\x9cAfter hearing [the\nteacher\xe2\x80\x99s] testimony, and what you know of the case of the boy, seeing it on the 8th day of March,\nwhat, in your opinion, was the exciting cause that produced the inflammation that you saw in that\nboy\xe2\x80\x99s leg on that day?\xe2\x80\x9d An objection to this question was overruled, and the witness answered: \xe2\x80\x9cThe\nexciting cause was the injury received at that day by the kick on the shin-bone.\xe2\x80\x9d\nIt will be observed that the above question to Dr. Philler calls for his opinion as a medical expert,\nbased in part upon the testimony of the plaintiff, as to what was the proximate cause of the injury to\nplaintiff\xe2\x80\x99s leg. The plaintiff testified to two wounds upon his leg, either of which might have been\nsuch proximate cause. Without taking both of these wounds into consideration, the expert could\ngive no intelligent or reliable opinion as to which of them caused the injury complained of; yet, in\nthe hypothetical question propounded to him, one of these probable causes was excluded from the\nconsideration of the witness, and he was required to give his opinion upon an imperfect and\ninsufficient hypothesis\xe2\x80\x94one which excluded from his consideration a material fact essential to an\nintelligent opinion. A consideration by the witness of the wound received by the plaintiff in January\nbeing thus prevented, the witness had but one fact upon which to base his opinion, to wit, the fact\nthat defendant kicked plaintiff on the shin-bone. Based, as it necessarily was, on that fact alone, the\nopinion of Dr. Philler that the kick caused the injury was inevitable, when, had the proper hypothesis\nbeen submitted to him, his opinion might have been different. The answer of Dr. Philler to the\nhypothetical question put to him may have had, probably did have, a controlling influence with the\njury, for they found by their verdict that his opinion was correct.\nSurely there can be no rule of evidence which will tolerate a hypothetical question to an expert,\ncalling for his opinion in a matter vital to the case, which excludes from his consideration facts\nalready proved by a witness upon whose testimony such hypothetical question is based, when a\nconsideration of such facts by the expert is absolutely essential to enable him to form an intelligent\nopinion concerning such matter. The objection to the question put to Dr. Philler should have been\nsustained. The error in permitting the witness to answer the question is material, and necessarily\nfatal to the judgment.\nCertain questions were proposed on behalf of defendant to be submitted to the jury, founded\nupon the theory that only such damages could be recovered as the defendant might reasonably be\nsupposed to have contemplated as likely to result from his kicking the plaintiff. The court refused to\nsubmit such questions to the jury. The ruling was correct. The rule of damages in actions for torts\nwas held in Brown v. C., M. & St. P. R. Co. to be that the wrong-doer is liable for all injuries resulting\ndirectly from the wrongful act, whether they could or could not have been foreseen by him\xe2\x80\xa6.\nThe judgment of the circuit court is reversed, and the cause will be remanded for a new trial.\n\n\x0cCASES & CRITIQUE\n\n1.\n\nQUESTIONS\nAccidentally on Purpose: Putney argues that he\xe2\x80\x99s not liable because the jury found that\nhe didn\xe2\x80\x99t intend to hurt Vosburg. Is that a good defense?\n\n2.\n\nKarate Kids: What if the kick had been on the playground? Same result?\n\n3.\n\nEggshell Skull: You\xe2\x80\x99ll hear a lot about reasonable foreseeability in due course\xe2\x80\x94it\xe2\x80\x99s\ncritically important when we cover the tort of negligence. But here the court says it\xe2\x80\x99s\nlegally irrelevant whether Putney could have foreseen that his kick would do so much\nharm to Vosburg. Is that fair? Does the rule make any sense?\n\n\xc3\xa3\n\n\xc3\xa3\n\nWela Quan, Vosburg v. Putney, NY Bar Picture Book (CC BY-NC-ND 4.0).\n\n15\n\n\x0c16\n\nTORT LAW\n\nGARRATT v. DAILEY\nSupreme Court of Washington (1955)\nHill, Justice:\n\n\xc3\xa3\n\n\xe2\x80\xa6Brian Dailey (age five years, nine months) was visiting with Naomi\nGarratt, an adult and a sister of the plaintiff, Ruth Garratt, likewise an adult,\nin the backyard of the plaintiff\xe2\x80\x99s home, on July 16, 1951. It is plaintiff\xe2\x80\x99s\ncontention that she came out into the backyard to talk with Naomi and\nthat, as she started to sit down in a wood and canvas lawn chair, Brian\ndeliberately pulled it out from under her. The only one of the three persons\npresent so testifying was Naomi Garratt. (Ruth Garratt, the plaintiff, did\nnot testify as to how or why she fell.) The trial court, unwilling to accept\nthis testimony, adopted instead Brian Dailey\xe2\x80\x99s version of what happened,\nand made the following findings:\n\xe2\x80\xa6[W]hile Naomi Garratt and Brian Dailey were in the back yard the plaintiff,\nRuth Garratt, came out of her house into the back yard. Some time subsequent\nthereto defendant, Brian Dailey, picked up a lightly built wood and canvas lawn\nchair which was then and there located in the back yard\xe2\x80\xa6moved it sideways a few\nfeet and seated himself therein, at which time he discovered the plaintiff, Ruth\nGarratt, about to sit down at the place where the lawn chair had formerly been, at\nwhich time he hurriedly got up from the chair and attempted to move it toward\nRuth Garratt to aid her in sitting down in the chair; that due to the defendant\xe2\x80\x99s\nsmall size and lack of dexterity he was unable to get the lawn chair under the\nplaintiff in time to prevent her from falling to the ground. That plaintiff fell to the\nground and sustained a fracture of her hip, and other injuries and damages as\nhereinafter set forth.\xe2\x80\xa6 [T]he preponderance of the evidence in this case\nestablishes that when the defendant, Brian Dailey, moved the chair in question he\ndid not have any willful or unlawful purpose in doing so; that he did not have any\nintent to injure the plaintiff, or any intent to bring about any unauthorized or\noffensive contact with her person or any objects appurtenant thereto; that the\ncircumstances which immediately preceded the fall of the plaintiff established that\nthe defendant, Brian Dailey, did not have purpose, intent or design to perform a\nprank or to effect an assault and battery upon the person of the plaintiff.\nIt is conceded that Ruth Garratt\xe2\x80\x99s fall resulted in a fractured hip and other painful and serious\ninjuries. To obviate the necessity of a retrial in the event this court determines that she was entitled\nto a judgment against Brian Dailey, the amount of her damage was found to be eleven thousand\ndollars. Plaintiff appeals from a judgment dismissing the action and asks for the entry of a judgment\nin that amount or a new trial\xe2\x80\xa6.\nIt is urged that Brian\xe2\x80\x99s action in moving the chair constituted a battery. A definition (not allinclusive but sufficient for our purpose) of a battery is the intentional infliction of a harmful bodily\ncontact upon another. The rule that determines liability for battery is given in 1 Restatement, Torts,\n29, \xc2\xa7 13, as:\nAn act which, directly or indirectly, is the legal cause of a harmful contact with\nanother\xe2\x80\x99s person makes the actor liable to the other, if\n(a) the act is done with the intention of bringing about a harmful or offensive\ncontact or an apprehension thereof to the other or a third person, and\n(b) the contact is not consented to by the other or the other\xe2\x80\x99s consent thereto is\nprocured by fraud or duress, and\n(c) the contact is not otherwise privileged.\n\n\xc3\xa3\n\nTheir History, Punishments (CC BY-NC-SA 2.0).\n\n\x0cCASES & CRITIQUE\n\n17\n\nWe have in this case no question of consent or privilege. We therefore proceed to an immediate\nconsideration of intent and its place in the law of battery. In the comment on clause (a), the\nRestatement says:\nCharacter of actor\xe2\x80\x99s intention. In order that an act may be done with the intention\nof bringing about a harmful or offensive contact or an apprehension thereof to a\nparticular person, either the other or a third person, the act must be done for the\npurpose of causing the contact or apprehension or with knowledge on the part of\nthe actor that such contact or apprehension is substantially certain to be produced.\nWe have here the conceded volitional act of Brian, i.e., the moving of a chair. Had the plaintiff\nproved to the satisfaction of the trial court that Brian moved the chair while she was in the act of\nsitting down, Brian\xe2\x80\x99s action would patently have been for the purpose or with the intent of causing\nthe plaintiff\xe2\x80\x99s bodily contact with the ground, and she would be entitled to a judgment against him\nfor the resulting damages. Vosburg v. Putney, 50 N.W. 403. (Wis. 1891).\nThe plaintiff based her case on that theory, and the trial court held that she failed in her proof\nand accepted Brian\xe2\x80\x99s version of the facts rather than that given by the eyewitness who testified for\nthe plaintiff. After the trial court determined that the plaintiff had not established her theory of a\nbattery (i.e., that Brian had pulled the chair out from under the plaintiff while she was in the act of\nsitting down), it then became concerned with whether a battery was established under the facts as it\nfound them to be.\nIn this connection, we quote another portion of the comment on the \xe2\x80\x9cCharacter of actor\xe2\x80\x99s\nintention,\xe2\x80\x9d relating to clause (a) of the rule from the Restatement heretofore set forth:\nIt is not enough that the act itself is intentionally done and this, even though the\nactor realizes or should realize that it contains a very grave risk of bringing about\nthe contact or apprehension. Such realization may make the actor\xe2\x80\x99s conduct\nnegligent or even reckless but unless he realizes that to a substantial certainty, the\ncontact or apprehension will result, the actor has not that intention which is\nnecessary to make him liable under the rule stated in this Section.\nA battery would be established if, in addition to plaintiff\xe2\x80\x99s fall, it was proved that, when Brian\nmoved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down\nwhere the chair had been. If Brian had any of the intents which the trial court found, in the italicized\nportions of the findings of fact quoted above, that he did not have, he would of course have had the\nknowledge to which we have referred. The mere absence of any intent to injure the plaintiff or to\nplay a prank on her or to embarrass her, or to commit an assault and battery on her would not\nabsolve him from liability if in fact he had such knowledge. Without such knowledge, there would\nbe nothing wrongful about Brian\xe2\x80\x99s act in moving the chair, and, there being no wrongful act, there\nwould be no liability.\nWhile a finding that Brian had no such knowledge can be inferred from the findings made, we\nbelieve that before the plaintiff\xe2\x80\x99s action in such a case should be dismissed there should be no\nquestion but that the trial court had passed upon that issue; hence, the case should be remanded for\nclarification of the findings to specifically cover the question of Brian\xe2\x80\x99s knowledge, because intent\ncould be inferred therefrom. If the court finds that he had such knowledge, the necessary intent will\nbe established and the plaintiff will be entitled to recover, even though there was no purpose to injure\nor embarrass the plaintiff. If Brian did not have such knowledge, there was no wrongful act by him,\nand the basic premise of liability on the theory of a battery was not established\xe2\x80\xa6. The cause is\nremanded for clarification, with instructions to make definite findings on the issue of whether Brian\nDailey knew with substantial certainty that the plaintiff would attempt to sit down where the chair\nwhich he moved had been, and to change the judgment if the findings warrant it\xe2\x80\xa6.\n1.\n\nQUESTIONS\nJust Enough Knowledge to Be Dangerous: Does the legal standard discussed in Garratt\nmodify the longstanding rule that battery requires the defendant to intentionally make\ncontact with the plaintiff?\n\n\x0c18\n\nTORT LAW\n\n2.\n\nAccess to Justice: Ruth Garratt ultimately won a judgment of $11,000\xe2\x80\x94over $100,000\nin today\xe2\x80\x99s money. How on earth would little Brian Dailey pay? Consider the following\nbackground from Jennifer Wriggins:\nAccess to liability insurance equals access to the tort system. When plaintiffs in the\ntort system receive money for damages, the money generally comes out of a defendant\xe2\x80\x99s\nliability insurance policy, rather than out of the defendant\xe2\x80\x99s pocket. Liability insurance\nalso pays the bills for defense and plaintiff lawyers\xe2\x80\x94either directly (defense lawyers) or\nindirectly (plaintiffs\xe2\x80\x99 lawyers). Torts casebooks\xe2\x80\xa6generally leave out how unequally\nliability insurance has been distributed. It has been unequally distributed by race\xe2\x80\x94as a\nresult at least in part of deliberate racism by institutions, individuals, and governments\xe2\x80\x94\nin several different ways. One way is that after World War II, the GI bill gave valuable\nbenefits and low-cost home loans to returning white GIs while in practice denying\nbenefits and home loans to African-American returning GIs. Homes purchased with the\nhelp of the GI bill had to have liability insurance. Thus, as housing was unequally\ndistributed by race, so was liability insurance. A second way is that insurance companies\nrefused to issue policies in urban neighborhoods with large populations of AfricanAmericans; this practice, known as \xe2\x80\x98redlining,\xe2\x80\x99 contributed to neighborhoods\xe2\x80\x99 decline.\nGarratt v. Dailey, a classic torts case, looks a bit different with this background. Ruth\nGarratt sued a five-year-old boy, Brian Dailey, for injuries she received when he pulled\na chair out from under her as she was starting to sit down. Generations of law students\nponder the intent Brian did or did not have. Ruth Garratt won $11,000 (about $105,474\nin today\xe2\x80\x99s dollars) for a fractured hip and serious injuries. Brian, of course, did not have\nthe money to pay $11,000 for the injuries he caused. But as a resident of his parents\xe2\x80\x99\nhome, he was an \xe2\x80\x98insured\xe2\x80\x99 under their homeowners policy, one casebook tells us. Thus,\nRuth Garratt got the $11,000 compensation for her injuries from Brian\xe2\x80\x99s parents\xe2\x80\x99\nhomeowners policy.\nBut let\xe2\x80\x99s not stop there. Consider for a moment the same facts and injury if Brian\xe2\x80\x99s\nparents did not own their house. If they rented rather than owned, it is very unlikely they\nwould have had renters\xe2\x80\x99 insurance that would cover Brian and the injuries he caused by\nhis chair-pulling. And with no liability insurance covering Brian, Ruth Garratt would\nnot have been able to find a lawyer, there would have been no lawsuit, and her injury\nwould have gone uncompensated. The same outcome\xe2\x80\x94no lawsuit\xe2\x80\x94would result if his\nparents owned a house but had no insurance. The parents would probably not be liable\nfor Brian\xe2\x80\x99s actions. And even if they were, it would have been difficult or impossible for\nRuth Garratt to find a lawyer to pursue the case unless Brian\xe2\x80\x99s parents were very wealthy\nand had collectible assets. Liability insurance has a central place in torts regardless of the\nrace of the participants, but distribution of liability insurance\xe2\x80\x94and the extent to which\nplaintiffs are compensated\xe2\x80\x94has been influenced by race and racism.*\n\n* Jennifer Wriggins, Teaching Torts with a Focus on Race and Racism (Feb. 19, 2020),\nhttps://mainelaw.maine.edu/faculty/teaching-torts-with-a-focus-on-race-and-racism; see also KENNETH ABRAHAM, THE\nLIABILITY CENTURY 177 (2008); Jennifer Wriggins, In Deep: Dilemmas of Federal Flood Insurance Reform, 6 U.C. IRVINE L.\nREV. 1443, 1457\xe2\x80\x9358 (2015); Erin Blakemore, How the GI Bill\xe2\x80\x99s Promise Was Denied to a Million Black WWII Veterans, HISTORY\n(Apr. 20, 2021), www.history.com/news/gi-bill-black-wwii-veterans-benefits.\n\n\x0cCASES & CRITIQUE\n\n19\n\nThe following case and questions involve racism and slavery.\nFISHER v. CARROUSEL MOTOR HOTEL, INC.\nSupreme Court of Texas (1967)\nGreenhill, Justice:\nThis is a suit for actual and exemplary\ndamages growing out of an alleged assault and\nbattery. The plaintiff Fisher was a\nmathematician with the Data Processing\nDivision of the Manned Spacecraft Center, an\nagency of the National Aeronautics and Space\nAgency, commonly called NASA, near\nHouston. The defendants were the Carrousel\nMotor Hotel, Inc., located in Houston, the Brass\nRing Club, which is located in the Carrousel,\nand Robert W. Flynn, who as an employee of\nthe Carrousel was the manager of the Brass Ring Club\xe2\x80\xa6.\nThe plaintiff Fisher had been invited by Ampex Corporation and Defense Electronics to a one\nday\xe2\x80\x99s meeting regarding telemetry equipment at the Carrousel. The invitation included a luncheon.\nThe guests were asked to reply by telephone whether they could attend the luncheon, and Fisher\ncalled in his acceptance. After the morning session, the group of 25 or 30 guests adjourned to the\nBrass Ring Club for lunch. The luncheon was buffet style, and Fisher stood in line with others and\njust ahead of a graduate student of Rice University who testified at the trial. As Fisher was about to\nbe served, he was approached by Flynn, who snatched the plate from Fisher\xe2\x80\x99s hand and shouted that\nhe, a Negro, could not be served in the club. Fisher testified that he was not actually touched, and\ndid not testify that he suffered fear or apprehension of physical injury; but he did testify that he was\nhighly embarrassed and hurt by Flynn\xe2\x80\x99s conduct in the presence of his associates.\nThe jury found that Flynn \xe2\x80\x9cforceably dispossessed plaintiff of his dinner plate\xe2\x80\x9d and \xe2\x80\x9cshouted in\na loud and offensive manner\xe2\x80\x9d that Fisher could not be served there, thus subjecting Fisher to\nhumiliation and indignity. It was stipulated that Flynn was an employee of the Carrousel Hotel and,\nas such, managed the Brass Ring Club. The jury also found that Flynn acted maliciously and awarded\nFisher $400 actual damages for his humiliation and indignity and $500 exemplary damages for\nFlynn\xe2\x80\x99s malicious conduct.\nThe Court of Civil Appeals held that there was no assault because there was no physical contact\nand no evidence of fear or apprehension of physical contact. However, it has long been settled that\nthere can be a battery without an assault, and that actual physical contact is not necessary to\nconstitute a battery, so long as there is contact with clothing or an object closely identified with the\nbody. In Prosser, Law of Torts 32 (3d Ed. 1964), it is said:\nThe interest in freedom from intentional and unpermitted contacts with the\nplaintiff\xe2\x80\x99s person is protected by an action for the tort commonly called battery.\nThe protection extends to any part of the body, or to anything which is attached\nto it and practically identified with it. Thus contact with the plaintiff\xe2\x80\x99s clothing, or\nwith a cane, a paper, or any other object held in his hand will be sufficient;\xe2\x80\xa6 The\nplaintiff\xe2\x80\x99s interest in the integrity of his person includes all those things which are\nin contact or connected with it.\nUnder the facts of this case, we have no difficulty in holding that the intentional grabbing of\nplaintiff\xe2\x80\x99s plate constituted a battery. The intentional snatching of an object from one\xe2\x80\x99s hand is as\nclearly an offensive invasion of his person as would be an actual contact with the body. To constitute\nan assault and battery, it is not necessary to touch the plaintiff\xe2\x80\x99s body or even his clothing; knocking\nor snatching anything from plaintiff\xe2\x80\x99s hand or touching anything connected with his person, when\ndone in an offensive manner, is sufficient.\xe2\x80\xa6 In S. H. Kress & Co. v. Brashier, 50 S.W.2d 922 (Tex.\n\n\x0c20\n\nTORT LAW\n\nCiv. App. 1932), the defendant was held to have committed \xe2\x80\x9can assault or trespass upon the person\xe2\x80\x9d\nby snatching a book from the plaintiff\xe2\x80\x99s hand. The jury findings in that case were that the defendant\n\xe2\x80\x9cdispossessed plaintiff of the book\xe2\x80\x9d and caused her to suffer \xe2\x80\x9chumiliation and indignity.\xe2\x80\x9d\nThe rationale for holding an offensive contact with such an object to be a battery is explained in\n1 Restatement of Torts 2d \xc2\xa7 18 as follows: \xe2\x80\x9cSince the essence of the plaintiff\xe2\x80\x99s grievance consists in\nthe offense to the dignity involved in the unpermitted and intentional invasion of the inviolability\nof his person and not in any physical harm done to his body, it is not necessary that the plaintiff\xe2\x80\x99s\nactual body be disturbed. Unpermitted and intentional contacts with anything so connected with\nthe body as to be customarily regarded as part of the other\xe2\x80\x99s person and therefore as partaking of its\ninviolability is actionable as an offensive contact with his person. There are some things such as\nclothing or a cane or, indeed, anything directly grasped by the hand which are so intimately\nconnected with one\xe2\x80\x99s body as to be universally regarded as part of the person.\xe2\x80\x9d We hold, therefore,\nthat the forceful dispossession of plaintiff Fisher\xe2\x80\x99s plate in an offensive manner was sufficient to\nconstitute a battery, and the trial court erred in granting judgment notwithstanding the verdict on\nthe issue of actual damages.\nIn Harned v. E-Z Finance Co., 254 S.W.2d 81 (Tex. 1953), this Court refused to adopt the \xe2\x80\x9cnew\ntort\xe2\x80\x9d of intentional interference with peace of mind which permits recovery for mental suffering in\nthe absence of resulting physical injury or an assault and battery. This cause of action has long been\nadvocated by respectable writers and legal scholars. However, it is not necessary to adopt such a\ncause of action in order to sustain the verdict of the jury in this case. The Harned case recognized\nthe well established rule that mental suffering is compensable in suits for willful torts \xe2\x80\x9cwhich are\nrecognized as torts and actionable independently and separately from mental suffering or other\ninjury.\xe2\x80\x9d Damages for mental suffering are recoverable without the necessity for showing actual\nphysical injury in a case of willful battery because the basis of that action is the unpermitted and\nintentional invasion of the plaintiff\xe2\x80\x99s person and not the actual harm done to the plaintiff\xe2\x80\x99s body.\nPersonal indignity is the essence of an action for battery; and consequently the defendant is liable\nnot only for contacts which do actual physical harm, but also for those which are offensive and\ninsulting. We hold, therefore, that plaintiff was entitled to actual damages for mental suffering due\nto the willful battery, even in the absence of any physical injury.\xe2\x80\xa6 The judgments of the courts\nbelow are reversed, and judgment is here rendered for the plaintiff for $900 with interest from the\ndate of the trial court\xe2\x80\x99s judgment, and for costs of this suit.\n1.\n\nQUESTIONS\nPen Pals: If your friend reaches over during class and grabs your pen from your hand, is\nthat battery under Fisher?\n\n2.\n\nWhat\xe2\x80\x99s Tort Law Up To? How are the goals of tort law served by a decision like Fisher?\n\n3.\n\nPersonality Extended, but to Whom? Fisher presents a famous example of the doctrine\nof \xe2\x80\x9cextended personality,\xe2\x80\x9d under which battery may occur through \xe2\x80\x9cintentional contacts\nwith anything so connected with the body as to be customarily regarded as part of the\nother\xe2\x80\x99s person.\xe2\x80\x9d Here, it was contact with a plate snatched from the hands of a Black\nman. But consider the case of State v. Davis, 19 S.C.L. (1 Hill) 46 (S.C. App. L. & Eq.\n1833), a criminal assault case in which an enslaved person was attached by a rope to a\ndeputy sheriff to prevent escape. A third man, Davis, cut the rope and took the enslaved\nperson away. The court explained that Davis\xe2\x80\x99s act constituted assault on the deputy\nsheriff because \xe2\x80\x9c[t]he rope was as much identified with his person, as the hat or coat\nwhich he wore, or the stick which he held in his hand,\xe2\x80\x9d or even \xe2\x80\x9cthe horse on which he\nrides.\xe2\x80\x9d The court said nothing, however, about the interests of the enslaved person who\nwas also attached to the rope.\n\n\x0cEICHENWALD v. RIVELLO\nUnited States District Court for the District of Maryland (2018)\nBredar, Chief Judge:\nPlaintiff Kurt Eichenwald brought this\naction against Defendant John Rivello over a\nyear ago, on April 24, 2017. Defendant is facing\ncriminal charges related to the same incident\nunderlying this civil case\xe2\x80\xa6.\nPlaintiff is a journalist and author currently\nliving in Texas. Plaintiff\xe2\x80\x99s work is well known.\nHe writes for Newsweek and Vanity Fair. He\nworked for years at the New York Times, has\nauthored four books, and has won several\nawards including the George Polk Award\n(twice). He is an active Twitter user, having\nposted over 50,000 tweets.\nPlaintiff also has epilepsy. He was diagnosed\nat age 18, and suffered from frequent seizures as\na young adult. Medication has helped reduce\nthe number of seizures, but he continues to\nexperience them. Plaintiff has been public about\nhis condition in the past and in 2016 wrote an\narticle, published in Newsweek, titled \xe2\x80\x9cSean\nHannity: Apologize to Those with Epilepsy, or\nBurn in Hell.\xe2\x80\x9d\nDuring the 2016 election, Plaintiff was often critical of then-candidate Donald J. Trump, and\nexpressed those views in his writing and on his Twitter account. Plaintiff received numerous threats\nand messages over the Internet as a result of his public criticism, and wrote about the online abuse\nfor Newsweek in October 2016. In that article, Plaintiff wrote about one instance of online\nharassment in particular. Plaintiff received a tweet from someone with the twitter handle \xe2\x80\x9cMike\xe2\x80\x99s\nDeplorable AF.\xe2\x80\x9d In that tweet Mike made mention of [Plaintiff\xe2\x80\x99s] seizures and included a small\nvideo\xe2\x80\xa6. The video was some sort of strobe light, with flashing circles and images\xe2\x80\xa6flying toward\nthe screen. The video was \xe2\x80\x9cepileptogenic,\xe2\x80\x9d meaning it triggers seizures. Plaintiff did not suffer a\nseizure upon opening this video, however, because he quickly dropped the device.\nTwo months later, on December 15, 2016, a Twitter user with the handle @jew_goldstein, replied\nto one of Plaintiff\xe2\x80\x99s tweets. (When Plaintiff clicked on the notification button on twitter, the replies\nto his tweet immediately loaded, including the reply from @jew_goldstein. The tweet included (and\nimmediately displayed) a Graphic Interchange Format (\xe2\x80\x9cGIF\xe2\x80\x9d) that contained an animated strobe\nimage flashing at a rapid speed. In addition to the flashing images, the GIF contained the message\n\xe2\x80\x9cYOU DESERVE A SEIZURE FOR YOUR POSTS.\xe2\x80\x9d Upon seeing the rapidly flashing GIF, Plaintiff\nsuffered a severe seizure.\nFor reasons that will become clear, it is necessary to briefly discuss the physical reactions that led\nto Plaintiff\xe2\x80\x99s seizure. Light comes in rays, or waves, comprised in part by photons. These waves\nsometimes reflect off objects and strike a person\xe2\x80\x99s cornea, which focuses the light wave. The eye\nfocuses the wave onto its retina, which through a process of visual phototransduction, converts the\nlight wave into electrical impulses. That is, photons hit the retina and are converted into electrical\nsignals. These electrical signals are then transmitted by the optic nerve to the visual cortex. Such\nelectrical signals from strobing images can trigger seizures in certain individuals with epilepsy. So,\nDefendant intentionally caused photons to hit Plaintiff\xe2\x80\x99s retina, causing Plaintiff to suffer a seizure.\nPlaintiff\xe2\x80\x99s wife witnessed the seizure and, after caring for Plaintiff, called the police. According\nto information obtained as a result of the criminal investigation, Defendant, who lives in Maryland,\noperated the @jew_goldstein account. Defendant discussed with others his intent to harm Plaintiff\n\n\x0c22\n\nTORT LAW\n\nby causing a seizure. Defendant was arrested on March 17, 2017, and three days later a grand jury\nindicted him for the offense of aggravated assault with a deadly weapon.\nPlaintiff continued to suffer as a result of the December 15 seizure. He experienced another\nseizure in his sleep, and he had to take increased medication, which left him sedated and disabled\nduring the holidays. He required assistance from his family to perform routine tasks, and was\nembarrassed, humiliated, and deeply upset as a result of this incident.\nWith the criminal case against Defendant still pending, Plaintiff filed a civil case against\nDefendant in this Court on April 24, 2017. Plaintiff brought four claims: (I) battery, (II) assault,\n(III) intentional infliction of emotional distress, and (IV) \xe2\x80\x9cpurposeful infliction of bodily\nharm/prima facie tort under Texas law.\xe2\x80\x9d\xe2\x80\xa6 [Under the rule of lex loci delicti,] the substantive tort\nlaw of the state where the wrong occurs governs. Plaintiff has alleged that he was harmed in Texas,\nand therefore the Court will apply the substantive tort law of Texas in analyzing Plaintiff\xe2\x80\x99s claims\xe2\x80\xa6.\nDefendant has moved to dismiss Counts I and IV of Plaintiff\xe2\x80\x99s complaint, and presents three\narguments in support of that request. First, Defendant contends that Texas courts do not recognize\na claim of civil battery, and instead only recognize a claim for assault. Second, Defendant argues that\nPlaintiff\xe2\x80\x99s claim of battery fails because he has not alleged any physical contact. Third, Defendant\nasserts that the \xe2\x80\x9cwrong\xe2\x80\x9d claimed in Count IV has not yet been recognized as a tort in Texas and\ntherefore it must be dismissed with prejudice\xe2\x80\xa6.\na. Assault and Battery\nDefendant requests that the Court dismiss Plaintiff\xe2\x80\x99s first count of battery because, he argues,\nTexas does not recognize the tort of battery. Defendant is incorrect\xe2\x80\xa6.\nTexas courts\xe2\x80\x99 reliance on the Texas penal code in civil cases, and the Texas penal code\xe2\x80\x99s\ncombination of common law assault (threatening another with imminent bodily injury) and\ncommon law battery (harmful or offensive touching), has resulted in a number of civil courts mixing\nthem together under the term \xe2\x80\x9cassault.\xe2\x80\x9d Still, although the two torts are related, they are conceptually\ndistinct. Assault is redress for threatened, but non-consummated, harmful touchings; battery is\nredress for actual harmful, or offensive, touchings. Texas courts have recognized private causes of\naction for both assault and battery for well over a century.\nSo, the law is clear (even if the semantics are not). Whatever the label given to the cause of action,\nunder Texas law a plaintiff can assert a cause of action for common law battery, i.e. for\n\xe2\x80\x9cintentionally, knowingly, or recklessly causing bodily injury or intentionally or knowingly causing\nphysical contact with another when the person knows or should reasonably believe that the other\nwill regard the contact as offensive or provocative.\xe2\x80\x9d Tex. Penal Code Ann. \xc2\xa7 22.01(a)(1), (3). Insofar\nas Defendant\xe2\x80\x99s argument is that Plaintiff cannot bring a battery claim at all under Texas law,\nDefendant is incorrect.\nAnother reading of Defendant\xe2\x80\x99s argument, however, is that Plaintiff cannot bring both an\nassault and a battery claim under Texas law. According to this argument, both causes of action are\nnow melded into a single cause of action, \xe2\x80\x9cassault,\xe2\x80\x9d and although a plaintiff can recover for an\nintentional harmful or offensive touching, he cannot recover for both an intentional harmful or\noffensive touching and the threat of such a touching. Insofar as this is a proper reading of\nDefendant\xe2\x80\x99s argument, it still fails. As Plaintiff\xe2\x80\x99s complaint stands, he alleges that Defendant\xe2\x80\x99s\nintentional tortious conduct a) caused him to suffer physical harm and b) put him in fear of\nimmediate physical harm. Under Texas law, he can recover for both. If it turns out that he can\nonly prove physical harm, or only apprehension of immediate harm, that does not mean it is\nimproper to plead both torts in his complaint. Furthermore, at least at this early stage Plaintiff can\nplead as many alternative, or even inconsistent, causes of action and legal theories as he\npleases. Ultimately, Texas recognizes both assault and battery and Plaintiff may plead both assault\nand battery. The Court will not dismiss Count I on these grounds.\nb. Battery by GIF\nDefendant next argues that, whatever the label, Plaintiff\xe2\x80\x99s allegations do not amount to a civil\nbattery under Texas law. The Court disagrees.\n\n\x0cCASES & CRITIQUE\n\n23\n\nAs an initial matter, the Court notes that however one characterizes Plaintiff\xe2\x80\x99s claim, the facts as\npled constitute some form of a tort. The fundamental purposes of our tort system are to deter\nwrongful conduct, shift losses to responsible parties, and fairly compensate deserving victims. So far\nas there is one central idea in tort law, it would seem that it is it that liability must be based upon\nconduct which is socially unreasonable. The common thread woven into all torts is the idea of\nunreasonable interference with the interests of others. The civil tort is a mechanism by which courts\naid in the maintenance of a civil society, and as such offensive contacts, or those which are contrary\nto all good manners, need not be tolerated. Plaintiff has alleged that Defendant sent Plaintiff an\nimage with the intent to cause Plaintiff to have a seizure. Whatever exact name a legal scholar may\nput to it, that is a tort; it is conduct outside the bounds of a civil society, conduct that should be\npunished so as to deter its repetition, and conduct that causes a compensable harm. And although\nthe exact contours of the tort lack perfect clarity, ultimately it qualifies as a battery. \xe2\x80\x9cThe essence of\nthe plaintiff\xe2\x80\x99s grievance consists in the offense to the dignity involved in the unpermitted and\nintentional invasion of the inviolability of his person.\xe2\x80\x9d Restatement (Second) of Torts \xc2\xa7 18 cmt. c\n(1965). It is alleged that Defendant purposely acted to violate the dignity and health of the Plaintiff\nand did in fact so harm him. The novelty of the mechanism by which the harm was achieved does\nnot make those actions any less a tort.\nAlthough the nation\xe2\x80\x99s leading authority on tort law contends there may be \xe2\x80\x9cno necessity\nwhatever that a tort have a name,\xe2\x80\x9d W. Page Keeton et al., Prosser and Keeton on Torts, \xc2\xa7 1 at 3 (5th\ned. 1988), in the first three counts of his complaint, Plaintiff has applied several to the tortious\nconduct he perceives here: battery, assault, and intentional infliction of emotional distress. And,\nspecifically, Defendant has moved to dismiss Plaintiff\xe2\x80\x99s \xe2\x80\x9cbattery\xe2\x80\x9d claim. Therefore, it is through the\nlens of an alleged \xe2\x80\x9cbattery\xe2\x80\x9d that the Court shall assess the validity of Plaintiff\xe2\x80\x99s pleading.\nAs explained above, Texas courts look to the statutory definition of criminal assault for the\ndefinition of a civil battery. Thus, in Texas, a battery is the intentional, knowing, or reckless causing\nof a bodily injury, or intentionally or knowingly causing \xe2\x80\x9cphysical contact with another when the\nperson knows or should reasonably believe that the other will regard the contact as offensive or\nprovocative.\xe2\x80\x9d Tex. Pen. Code Ann. \xc2\xa7 22.01(a)(1), (3). Or, more simply, a battery is \xe2\x80\x9cthe least touching\nof another person willfully and in anger, by the use of any part of the body of the party committing\nthe offense.\xe2\x80\x9d Marshall v. AT & T, 117 F.3d 1417 (5th Cir. 1997).\nA battery undoubtedly requires some physical contact\xe2\x80\xa6. It is similarly well-established that the\nphysical contact need not be with the physical body of the plaintiff, see, e.g., Fisher v. Carrousel Motor\nHotel, Inc., 424 S.W.2d 627, 629 (Tex. 1967) (grabbing a person\xe2\x80\x99s plate in buffet line constituted a\nbattery), and it need not be direct physical contact, see Prosser \xc2\xa7 9 n.16 (citing examples such as\n\xe2\x80\x9coperating car so as to throw plaintiff from running board\xe2\x80\x9d). So, in order for a battery to occur, there\nmust be some physical contact between something and the plaintiff or something attached to the\nplaintiff.\nIf a person intentionally (or knowingly, or recklessly) causes another to come into contact with\na harmful physical element, that is a battery under Texas law. In Hutchinson v. Brookshire Bros., for\nexample, the plaintiff alleged that a store owner had asked a police officer to force the plaintiff to\nsiphon gasoline from the plaintiff\xe2\x80\x99s car (plaintiff had accidentally over-pumped). The Court found\nthat because a reasonable jury could conclude that the store owner knew the officer would force\nplaintiff to siphon the gas, the plaintiff\xe2\x80\x99s battery claim survived summary judgment. In U.S. v.\nVillegas-Hernandez, the Fifth Circuit, discussing Texas law, stated that the injury caused in a battery\n\xe2\x80\x9ccould result from any number of acts such as making available to the victim a poisoned drink while\nreassuring him the drink is safe, or telling the victim he can safely back his car out while knowing\nan approaching car will hit the victim.\xe2\x80\x9d\nHere, Plaintiff generally alleges that Defendant intentionally caused Plaintiff to come into\ncontact with a harmful physical element (i.e., the strobe GIF), and that is a battery under Texas law.\nIt is alleged that Defendant knew that Plaintiff would see the GIF, knew that its physical properties\nwould cause him a seizure, and knew that a seizure would be physically harmful, or at least offensive\nor provocative. Not only did Defendant know these things, Plaintiff alleges that Defendant intended\nthe exact harmful result that occurred. Plaintiff has stated a claim for battery under Texas law.\n\n\x0c24\n\nTORT LAW\n\nDefendant\xe2\x80\x99s concern focuses on the medium of the contact, asserting that \xe2\x80\x9cthere is no allegation\nin the Corrected Complaint of any physical contact between Plaintiff and Defendant.\xe2\x80\x9d But there is.\nPlaintiff has alleged that light waves emitted from the GIF touched Plaintiff\xe2\x80\x99s retina, generated an\nelectric signal, and caused a seizure. Taking, as the Court must, Plaintiff\xe2\x80\x99s allegations as true,\nincluding his characterization of the science and Plaintiff\xe2\x80\x99s physical condition, there was physical\ncontact.\nSuch contact can often be of an amorphous nature; it is not always accomplished by means of a\nsolid, graspable object. According to the Supreme Court, \xe2\x80\x9c\xe2\x80\x98physical force\xe2\x80\x99 is simply \xe2\x80\x98force exerted by\nand through concrete bodies,\xe2\x80\x99 as opposed to \xe2\x80\x98intellectual force or emotional force.\xe2\x80\x99\xe2\x80\x9d U.S. v.\nCastleman, 572 U.S. 157 (2014). For example, courts around the Country have found that secondhand smoke (i.e., causing a person to come into contact with harmful smoke) can constitute a\nbattery. In Leichtman v. WLW Jacor Communications, Inc., 634 N.E.2d 697, 699 (Ohio Ct. App.\n1994), the court stated that \xe2\x80\x9ctobacco smoke, as particulate matter, has the physical properties\ncapable of making contact.\xe2\x80\x9d Even less tangible than smoke is sound. Yet, a court in Georgia found a\nbattery where the tortfeasor made a loud noise over the phone in order to harm the victim. This\nCourt has stated in a prior case, applying Maryland law, that it is not unreasonable to infer that\ncausing an electrical shock to someone may be regarded as a battery whether or not the tortfeasor\never laid a hand on the victim.\nDefendant here allegedly chose to use the electronic capabilities of a computer as a weapon\xe2\x80\x94as\na means of causing physical harm. Defendant\xe2\x80\x99s tweet, activating certain harmful capabilities of the\ntransmitting computer, converted the computer into a weapon to inflict physical injury. The\ncomputer and the tweet were no longer merely a mode of communication. Something more, and\nseparate, from mere communication occurred[:] an offensive touching. And, conscious\ninterpretation of the \xe2\x80\x9cmessage\xe2\x80\x9d was irrelevant to the offensive touching.1 The physical element that\nDefendant caused to come into contact with Plaintiff was something entirely outside either party\xe2\x80\x99s\nmind. It was not words or pictures that would require conscious interpretation (i.e. an internal\nprocess) to cause an impact. The strobe GIF was a physical tool, one that would have the same impact\non any person with Plaintiff\xe2\x80\x99s condition. It would not have mattered if the GIF had displayed hateful\nwords, words of kindness, certain colors or pictures, or only abstractions. What mattered was the\nphysical nature of the light emitted from the GIF. The light, and not the emotional or intellectual\nimpact of any accompanying message, caused a seizure, and it would not have caused a seizure if\nviewed by a person without epilepsy, regardless of whether they interpreted the tweet as meanspirited, frightening, or friendly. Effectively, and under the law, the scenario alleged is no different\nfrom that where a tortfeasor is alleged to have picked up a computer, thrown it at a Plaintiff\n(including one with or without an eggshell skull), and caused an impact that injured the Plaintiff\xe2\x80\x99s\nbrain. And, any message displayed on the computer\xe2\x80\x99s screen at the instant of impact is irrelevant to\nthe analysis of whether \xe2\x80\x9cbattery\xe2\x80\x9d occurred\xe2\x80\xa6.\nThat no Texas case exists where a plaintiff was harmed by an epileptogenic GIF in a tweet is\nneither troubling nor surprising. The broad sweep of Texas tort precedents provides firm ground\non which to find that this unique fact pattern, if proven, qualifies as \xe2\x80\x9cbattery.\xe2\x80\x9d2\nc. Purposeful Infliction of Bodily Harm\nFinally, Defendant has moved to dismiss Count IV on the ground that it is a tort \xe2\x80\x9cnot yet\nrecognized under Texas law.\xe2\x80\x9d Plaintiff concedes that the tort has not been recognized in Texas, and\nasks the Court to dismiss the claim without prejudice. Defendant argues that because this tort has\nnot been recognized in Texas, Plaintiff can prove no set of facts upon which relief could be granted,\nthus Count IV should be dismissed with prejudice. Again, the Court disagrees with Defendant.\n1\nTo be clear, Plaintiff\xe2\x80\x99s conscious interpretation of the tweet is irrelevant to the physical touching and harm that it\ncaused. How Plaintiff interpreted the message (i.e., \xe2\x80\x9cYOU DESERVE A SEIZURE FOR YOUR POSTS\xe2\x80\x9d) may be relevant to\nother aspects of this case, such as whether Defendant is liable for a civil assault, or for determining intent.\n2\nDevelopments in the ongoing criminal case are instructive, even if they do not control. Defendant was charged with\naggravated assault, and a Grand Jury indicted him on that charge. Aggravated assault in Texas is the commission of an assault\nwith a deadly weapon.\xe2\x80\xa6 The Grand Jury found that Defendant committed the harmful physical contact form of assault, and\ndid so with a deadly weapon\xe2\x80\xa6.\n\n\x0cCASES & CRITIQUE\n\n25\n\nThe mere fact that a claim is novel does not defeat it. Defendant seems to concede that this is a\ndeveloping area of the law, and not a foreclosed avenue for relief. He writes that the Texas courts\nhave \xe2\x80\x9cnot yet recognized\xe2\x80\x9d the tort, and presents the Court with no Texas case law that would prevent\nrelief. So, as this is a developing area of the law, the Court will dismiss the count without prejudice.\nIt is not the place of a federal court, particularly one in Maryland, to interfere with a developing\nbody of state tort law in Texas. Therefore, with an eye alert to avoiding disregard of State law, the\nCourt will not prevent Plaintiff from trying his hand in a different court, or at a different time, if he\nso chooses\xe2\x80\xa6.\n1.\n\n2.\n\nQUESTIONS\nHarmful Hypos: Would it be battery to shine a laser in someone\xe2\x80\x99s eye? How about using\na sonic weapon to cause hearing loss? Can a beam of light or a sound wave really\nconstitute a harmful or offensive contact?\nLeichtman Revisited: Is Eichenwald a clearer case of battery than Leichtman? Or is it\nmore debatable?\n\nB. Assault\nBEACH v. HANCOCK\nSuperior Court of Judicature of New Hampshire (1853)\nGilchrist, Justice:\n\n\xc3\xa3\n\n\xe2\x80\xa6[I]t appeared that the plaintiff and defendant, being engaged in\nan angry altercation, the defendant stepped into his office, which was at\nhand, and brought out a gun, which he aimed at the plaintiff in an\nexcited and threatening manner, the plaintiff being three or four rods\ndistant. The evidence tended to show that the defendant snapped the\ngun twice at the plaintiff, and that the plaintiff did not know whether\nthe gun was loaded or not, and that, in fact, the gun was not loaded.\nThe court ruled that the pointing of a gun, in an angry and\nthreatening manner, at a person three or four rods distant, who was\nignorant whether the gun was loaded or not, was an assault, though it\nshould appear that the gun was not loaded, and that it made no\ndifference whether the gun was snapped or not\xe2\x80\xa6. The jury\xe2\x80\xa6found a\nverdict for the plaintiff, [and] the defendant moved for a new trial\xe2\x80\xa6\nOne of the most important objects to be attained by the enactment of laws and the institutions\nof civilized society is, each of us shall feel secure against unlawful assaults. Without such security\nsociety loses most of its value. Peace and order and domestic happiness, inexpressibly more precious\nthan mere forms of government, cannot be enjoyed without the sense of perfect security. We have a\nright to live in society without being put in fear of personal harm. But it must be a reasonable fear\nof which we complain. And it surely is not unreasonable for a person to entertain a fear of personal\ninjury, when a pistol is pointed at him in a threatening manner, when, for aught he knows, it may\nbe loaded, and may occasion his immediate death. The business of the world could not be carried\non with comfort, if such things could be done with impunity. We think the defendant guilty of an\nassault\xe2\x80\xa6.\n1.\n2.\n\n\xc3\xa3\n\nQUESTIONS\nReady, Aim, Fire! How far away was Hancock from Beach? Do you think it matters?\nFear and Loathing in New Hampshire: The tort of battery clearly protects interests in\nbodily integrity. Can the same be said for assault?\n\nJiuck, Hands up! (CC BY-NC-SA 2.0).\n\n\x0c26\n\nTORT LAW\n\n3.\n\nComic Relief: An evil villain points a gun at three superheroes \xe2\x80\x94 Batman, who doesn\xe2\x80\x99t\nfear death; Superman, who can\xe2\x80\x99t be hurt by bullets; and The Flash, who can easily get\nout of the way. Which of them, if any, is likely to prevail on an assault claim?\nBROOKER v. SILVERTHORNE\nSupreme Court of South Carolina (1919)\n\nHydrick, Justice:\n\n\xc3\xa3\n\nDefendant appeals from judgment for plaintiff for $2,000\ndamages for mental anguish and nervous shock alleged to have been\ncaused by abusive and threatening language addressed to plaintiff by\ndefendant over the telephone.\nPlaintiff alleges: That on October 27, 1916, she was night\noperator at the telephone exchange at Barnwell. That defendant\ncalled the exchange over the telephone and asked for a certain\nconnection, which she promptly tried to get for him, but, upon her\nfailing to do so, he cursed and threatened her in an outrageous\nmanner, saying to her: \xe2\x80\x9cYou God damned woman! None of you\nattend to your business.\xe2\x80\x9d That she tried to reason with him, telling\nhim that she had done all that she could to get the connection he\nwanted, but he continued to abuse and threaten her, saying to her: \xe2\x80\x9cYou are a God damned liar. If I\nwere there, I would break your God damned neck.\xe2\x80\x9d That the language and threat of defendant put\nher in great fear that he would come to the exchange and further insult her, and that she was so\nshocked and unnerved that she was made sick and unfit for duty, and had to take medicine to make\nher sleep. That for weeks afterwards, when defendant\xe2\x80\x99s number would call, she would become so\nnervous that she could not answer the call. And that her nervous system was so shocked and wrecked\nthat she suffered and continues to suffer in health, mind, and body on account of the abusive and\nthreatening language addressed to her by defendant\xe2\x80\xa6.\nAlthough it cannot affect the decision, because the truth of the facts alleged is concluded by the\nverdict, it is nevertheless due to the defendant to say that he denied emphatically using the language\nattributed to him, and his denial was corroborated by the testimony of his wife and a lineman of the\ntelephone company. Defendant testified, also, that, on hearing that plaintiff was offended, he went\nto her and told her that he did not intend to say anything to offend her, and did not remember\nhaving done so, and asked her what he had said that offended her, and she replied that he had spoken\na little harshly to her; that he told her he did not remember having done so, but, if she thought so,\nhe was very sorry, and she seemed to be satisfied with this apology. This conversation was not denied\nby plaintiff.\nThe question is whether plaintiff stated or proved a cause of action. That question was decided\nin the negative in Rankin v. Railroad Co., 36 S.E. 997 (S.C. 1900). In that case, Mrs. Rankin alleged\nthat the railroad company\xe2\x80\x99s agents trespassed upon her premises, and were about to cut down some\ntrees of great value and beauty, and when she approached them and requested them not to do so,\nthe foreman of the gang \xe2\x80\x9ccursed her and ordered her to get away from there, or he would put her in\nthe penitentiary, and threatened to strike her, she being an old woman, and otherwise maltreated\nand abused her to her great damage.\xe2\x80\x9d\xe2\x80\xa6 The Court considered the complaint as having attempted\nto set forth two causes of action, one for trespass on the plaintiff\xe2\x80\x99s property and the other for the\nabusive and threatening language. After showing that no cause of action for trespass was stated, the\nquestion whether an action would lie for the abusive and threatening language was considered, and\nit was held that it would not. On appeal, this Court affirmed the judgment upon the reasoning of the\nCircuit Court, and said: \xe2\x80\x9cNo assault upon the plaintiff is alleged, and mere words, under the\ncircumstances stated, would not be civilly actionable.\xe2\x80\x9d\nThe Circuit Court rested its conclusions in part upon\xe2\x80\xa6quotations from Cooley on Torts:\n\xc3\xa3\n\nStanford Medical History Center, Switchboard Operators (CC BY-NC-SA 2.0).\n\n\x0cCASES & CRITIQUE\n\n27\n\nAn act or omission may be wrong in morals, or it may be wrong in law. It is\nscarcely necessary to say that the two things are not interchangeable. No\ngovernment has undertaken to give redress whenever an act was found to be\nwrong, judged by the standard of strict morality; nor is it likely that any\ngovernment ever will. A threat to commit an injury is also sometimes made a\ncriminal offense, but it is not actionable private wrong. Many reasons may be\nassigned for distinguishing between this case and that of an assault, one of them\nbeing that the threat only promises a future injury, and usually gives ample\nopportunity to provide against it, while an assault must be resisted on the instant.\nBut the principal reason, perhaps, is found in the reluctance of the law to give a\ncause of action for mere words. Words never constitute an assault, is a timehonored maxim. Words may be thoughtlessly spoken; they may be\nmisunderstood; they may have indicated to the person threatened nothing but\nmomentary spleen or anger, though when afterwards reported by witnesses they\nseem to express deliberate malice and purpose to injure. Even when defamation\nis complained of, the law is very careful to require something more than\nexpressions of anger, reproach, or contempt, before it will interfere; justly\nconsidering that it is safer to allow too much liberty than to interpose too much\nrestraint. And comparing assaults and threats, another important difference is to\nbe noted: In the case of threats, as has been stated, preventive remedies are\navailable; but against an assault there are usually none beyond what the party\nassaulted has in his own power of physical resistance\xe2\x80\xa6.\n[W]hen it was said in the Rankin case that no action would lie for mere threats or abusive words\nspoken, the Court was careful to qualify the statement by confining it to the circumstances\nstated\xe2\x80\xa6[because] it is not absolutely true that no action will lie for threats. Blackstone says that\ninjury may be committed \xe2\x80\x9cby threats and menaces of bodily hurt, through fear of which a man\xe2\x80\x99s\nbusiness is interrupted. A menace alone, without a consequent inconvenience, makes not the injury,\nbut to complete the wrong there must be both of them together\xe2\x80\xa6.\xe2\x80\x9d 3 Blackstone Commentaries 120.\nBut the threat which causes the fear must be such as the law will recognize as adequate to produce\nthe result. There must be just and reasonable ground for the fear; hence a vain or idle threat is not\nsufficient. It must be of such nature and made under such circumstances as to affect the mind of a\nperson of ordinary reason and firmness, so as to influence his conduct; or it must appear that the\nperson against whom it is made was peculiarly susceptible to fear, and that the person making the\nthreat knew and took advantage of the fact that he could not stand as much as an ordinary person.\nIf it should be conceded that the language of defendant contained a threat, it was not of such\nnature or made under such circumstances as to put a person of ordinary reason and firmness in fear\nof bodily hurt. And it is not alleged that plaintiff was not a person of ordinary reason and firmness\nand that defendant knew it; and, in the absence of such allegation, it will not be presumed. A person\nof ordinary reason and firmness should have known that the profane and vulgar language alleged to\nhave been used by defendant was the result of a momentary fit of passion, caused by his failure to\nget the connection he asked for, and that he had no intention of doing or attempting to do plaintiff\nany bodily hurt. But the words used did not amount to a threat. Defendant said: \xe2\x80\x9cIf I were there, I\nwould break your\xe2\x80\xa6neck.\xe2\x80\x9d But he was not there, and plaintiff knew it; and there is nothing in what\nhe said expressive of an intention to go there and injure plaintiff. Webster defines a \xe2\x80\x9cthreat\xe2\x80\x9d as \xe2\x80\x9cthe\nexpression of an intention to inflict evil or injury on another.\xe2\x80\x9d The law dictionaries give practically\nthe same definition. A threat therefore looks to the future. As Judge Cooley says, in the passage above\nquoted, \xe2\x80\x9ca threat only promises a future injury.\xe2\x80\x9d Here there was no expression of an intention to\ninjure in the future, and therefore no threat.\nThe language attributed to defendant\xe2\x80\x94especially when used by a man to a woman\xe2\x80\x94merits\nseverest condemnation and subjects the user to the scorn and contempt of his fellow men. But it is\nnot civilly actionable.\xe2\x80\xa6 Judgment reversed.\n\n\x0c28\n\nTORT LAW\n\n1.\n\nQUESTIONS\nBe Careful What You Wish For: Silverthorne allegedly said: \xe2\x80\x9cIf I were there, I would\nbreak your God damned neck.\xe2\x80\x9d The court said this wasn\xe2\x80\x99t civilly actionable as assault.\nCan you think of any conditional or future threats that might have led to different results?\n\n2.\n\nOut of the Ordinary: The court notes that Brooker never alleged that she \xe2\x80\x9cwas not a\nperson of ordinary reason and firmness and that defendant knew it.\xe2\x80\x9d Would it have\nmattered if she had? Why? Should it? And what if a defendant can demonstrate that a\nplaintiff alleging assault is of \xe2\x80\x9cextraordinary\xe2\x80\x9d reason and firmness? Should such a\nplaintiff be barred from seeking relief?\n\n3.\n\nGender Trouble I: Are the parties\xe2\x80\x99 genders playing a role here? If so, how?\nVETTER v. MORGAN\nCourt of Appeals of Kansas (1995)\n\nBriscoe, Judge:\n\n\xc3\xa3\n\nLaura Vetter appeals the summary judgment dismissal of her\n[assault claim] against Chad Morgan for injuries sustained in an\nautomobile accident\xe2\x80\xa6. Vetter was injured when her van ran off\nthe road after an encounter with a car owned by Morgan\xe2\x80\x99s father\nand driven by Dana Gaither. Morgan and Jerrod Faulkner were\npassengers in the car. Vetter was alone at 1:30 or 1:45 a.m. when\nshe stopped her van in the right-hand westbound lane of an\nintersection at a stoplight. Morgan and Gaither drove up beside\nVetter. Morgan began screaming vile and threatening\nobscenities at Vetter, shaking his fist, and making obscene gestures in a violent manner. According to\nVetter, Gaither revved the engine of the car and moved the car back and forth while Morgan was\nthreatening Vetter. Vetter testified that Morgan threatened to remove her from her van and spat on\nher van door when the traffic light turned green. Vetter stated she was very frightened and thought\nMorgan was under the influence of drugs or alcohol. She was able to write down the license tag\nnumber of the car. Morgan stated he did not intend to scare, upset, or harm Vetter, but \xe2\x80\x9cdidn\xe2\x80\x99t really\ncare\xe2\x80\x9d how she felt. He was trying to amuse his friends, who were laughing at his antics.\nWhen the traffic light changed to green, both vehicles drove forward. According to Vetter, after\nthey had driven approximately 10 feet, the car driven by Gaither veered suddenly into her lane, and\nshe reacted by steering her van sharply to the right. Vetter\xe2\x80\x99s van struck the curb, causing her head to\nhit the steering wheel and snap back against the seat, after which she fell to the floor of the van.\nMorgan and Gaither denied that the car veered into Vetter\xe2\x80\x99s lane, stating they drove straight away\nfrom the intersection and did not see Vetter\xe2\x80\x99s collision with the curb.\nVetter filed this action against Morgan and Gaither\xe2\x80\xa6. [The trial court concluded Morgan\xe2\x80\x99s\nactions did not constitute assault.] Vetter argues the trial court erred in dismissing her assault claim\nagainst Morgan. Assault is defined as \xe2\x80\x9can intentional threat or attempt, coupled with apparent\nability, to do bodily harm to another, resulting in immediate apprehension of bodily harm. No\nbodily contact is necessary.\xe2\x80\x9d Taiwo v. Vu, 822 P.2d 1024 (Kan. 1991).\nThe trial court concluded there was no evidence that Morgan threatened or attempted to harm\nVetter, that he had no apparent ability to harm her because her van was locked and the windows\nwere rolled up, and there was no claim of immediate apprehension of bodily harm. Vetter contends\nall of these conclusions involved questions of fact that should have been resolved by a jury.\nThere was evidence of a threat. Vetter testified in her deposition that Morgan verbally threatened\nto take her from her van. Ordinarily, words alone cannot be an assault. However, words can\nconstitute assault if together with other acts or circumstances they put the other in reasonable\napprehension of imminent harmful or offensive contact with his person.\n\n\xc3\xa3\n\nTHE FAST AND THE FURIOUS: TOKYO DRIFT (2006).\n\n\x0cCASES & CRITIQUE\n\n29\n\nThe record is sufficient to support an inference that Morgan\xe2\x80\x99s threat and the acts and\ncircumstances surrounding it could reasonably put someone in Vetter\xe2\x80\x99s position in apprehension of\nimminent or immediate bodily harm. Morgan\xe2\x80\x99s behavior was so extreme that Vetter could\nreasonably have believed he would immediately try to carry out his threat. It is not necessary that\nthe victim be placed in apprehension of instantaneous harm. It is sufficient if it appears there will be\nno significant delay.\nThe record also supports an inference that Morgan had the apparent ability to harm Vetter.\nAlthough Vetter\xe2\x80\x99s van was locked and the windows rolled up, the windows could be broken. The\ntwo vehicles were only six feet apart, and Morgan was accompanied by two other males. It was late\nat night, so witnesses and potential rescuers were unlikely. Although Vetter may have had the ability\nto flee by turning right, backing up, or running the red light, her ability to prevent the threatened\nharm by flight or self-defense does not preclude an assault. It is enough that Vetter believed that\nMorgan was capable of immediately inflicting the contact unless prevented by self-defense, flight,\nor intervention by others.\nThe trial court erred in concluding there was no evidence that Vetter was placed in apprehension\nof bodily harm. Whether Morgan\xe2\x80\x99s actions constituted an assault was a question of fact for the jury\xe2\x80\xa6.\n1.\n\nQUESTIONS\nNever Say Never: The court in Brooker says that words \xe2\x80\x9cnever constitute an assault.\xe2\x80\x9d In\nwhat way does Vetter challenge this \xe2\x80\x9ctime-honored maxim\xe2\x80\x9d?\n\n2.\n\nAssault by Tweet: Kelly tags Taylor on Twitter\xe2\x80\x94\xe2\x80\x9cI\xe2\x80\x99m gonna break your God damned\nneck, @TaylorK.\xe2\x80\x9d Drawing on Eichenwald, Brooker, and Vetter, could Kelly\xe2\x80\x99s tweet be\nan actionable assault? What are your best arguments for either side?\n\n3.\n\nGender Trouble II: Is gender playing a role in Vetter? Is it the same role as in Brooker?\nThe following problem discusses lynching.\nTHURGOOD PROBLEM\n\nNolan was an extra on the set of a movie about Thurgood Marshall\xe2\x80\x94a great civil-rights lawyer\n(and later U.S. Supreme Court justice) who was often threatened as he took controversial cases in\nthe Deep South. Nolan\xe2\x80\x99s big scene depicted a time when Marshall was nearly snatched by a lynch\nmob. Nolan\xe2\x80\x99s character was a painter who stood in a group of Black bystanders. Meanwhile, another\nextra named Trevor, who was white, saw one of the set props laying on the ground. It was a noose.\nDuring a break in filming, Trevor gleefully waived around the knotted rope and tossed it in Nolan\xe2\x80\x99s\ndirection. Nolan froze as he saw the noose fly through the air, land on his shoulder, and fall onto his\nfoot, at which point he quickly kicked it away. Though Nolan wasn\xe2\x80\x99t injured physically, he sued\nTrevor for both assault and battery.\n(a) Reacting to the assault claim, Trevor says \xe2\x80\x9cI mean, come on! I wasn\xe2\x80\x99t going to lynch him,\nfor crying out loud, nor could I have!\xe2\x80\x9d Does that argument persuade you?\n(b) Trevor also exclaims that he \xe2\x80\x9cdidn\xe2\x80\x99t mean to hit him!\xe2\x80\x9d How does this statement affect\nthe assault claim? How about the battery claim?\n(c) Finally, Trevor bemoans that Nolan \xe2\x80\x9cdidn\xe2\x80\x99t even move to get out of the way, so it clearly\nwasn\xe2\x80\x99t that big of a deal.\xe2\x80\x9d Is that a good argument?\n\n\x0c30\n\nTORT LAW\n\nIn re WHITE\nUnited States Bankruptcy Court of the Eastern District of Virginia (1982)\nShelley, Judge:\n\xe2\x80\xa6On September 10, 1977 Walter Calvin White, Jr.\n(White) shot Ralph Edward Davis (Davis) in the stomach\nwith a handgun. White was arrested for the shooting and on\nNovember 29, 1978 the Circuit Court of the City of\nRichmond found him guilty of maiming Davis and\nsentenced him to serve five years in the state penitentiary. On\nFebruary 26, 1980 Davis obtained a default judgment against\nWhite in the amount of $50,000.00 in the Circuit Court for\nthe City of Richmond on the ground that White willfully and\nmaliciously wounded Davis. White subsequently filed his petition in bankruptcy and Davis now asks\nthis Court to declare White\xe2\x80\x99s debt on account of that judgment nondischargeable in bankruptcy.\nOn the day of the shooting Davis and his brother, Marvin W. Davis, were washing cars in front\nof their mother\xe2\x80\x99s house on Fairmont Avenue in Richmond, Virginia. At the same time White, a\nneighbor who lives less than one block away on the same street, was having a conversation with\nWilliam Tipton (Tipton). In that conversation White and Tipton continued an argument which had\nbegun approximately one week earlier. White had obtained a gun in anticipation of seeing Tipton.\nWhite was carrying the pistol in a container on his motorcycle and pulled it out of the container\nduring the course of that argument.\nWhen White pulled the gun Tipton mounted his motorcycle and sped away. White shot at\nTipton as Tipton passed within twenty-five feet of Davis. He missed Tipton and the bullet hit Davis\nin the stomach. White fled the scene.\nWhite testified at the trial that he obtained the gun with the intent of scaring Tipton. He said\nthat he drew the gun after Tipton insulted his mother but that he did not intentionally fire the gun.\nHe claimed the gun went off when he tripped over a rock in the street.\nDavis and White did not know each other before the shooting incident. White said he pulled the\ngun intending to scare Tipton and that it accidently fired. This Court believes that White\xe2\x80\x99s testimony\nthat the gun accidently fired when he tripped over a rock is unworthy of belief. White testified that\nhe obtained the gun earlier that week with another meeting with Tipton in mind. Although Davis\nwas located almost a full block from White, the bullet hit him as Tipton passed within twenty-five\nfeet of him. White clearly intended to shoot Tipton; however, he missed and the bullet hit Davis\ninstead\xe2\x80\xa6.\nA debt incurred from an action based upon a willful and malicious injury by the debtor to\nanother person may be nondischargeable in bankruptcy.\xe2\x80\xa6 The word \xe2\x80\x9cwillful\xe2\x80\x9d means \xe2\x80\x9cdeliberate or\nintentional,\xe2\x80\x9d a deliberate and intentional act which necessarily leads to injury. Therefore, a wrongful\nact done intentionally, which necessarily produces harm and is without just cause or excuse, may\nconstitute a willful and malicious injury.\nWhite committed the wrongful act when he shot at Tipton. The act was intentional and it\nproduced an injury although not to the person White intended to injure. White\xe2\x80\x99s actions cannot be\nexcused solely because he missed his intended victim and instead hit someone else. The injury is not\nrequired to be directed against the victim, but includes any entity other than the intended victim.\nUnder the doctrine of transferred intent one who intends a battery is liable for that battery when\nhe unexpectedly hits a stranger instead of the intended victim. If one intentionally commits an\nassault or battery at another and by mistake strikes a third person, he is guilty of an assault and\nbattery of the third person if defendant\xe2\x80\x99s intention, in such a case, is to strike an unlawful blow, to\ninjure some person by his act, and it is not essential that the injury be to the one intended.\nVirginia courts have adopted the doctrine of transferred intent reasoning that every person is\nliable for the direct, natural and probable consequence of his acts, and that everyone doing an\nunlawful act is responsible for all of the consequential results of that act. There need be no actual\nintent to injure the particular person who is injured\xe2\x80\xa6.\n\n\x0cCASES & CRITIQUE\n\n31\n\nThe evidence here clearly shows that the shooting was a wrongful act intentionally done and that\nDavis\xe2\x80\x99s injuries resulted from that act. White deliberately, intentionally and maliciously fired the\ngun and injured Davis and the debt resulting from that act is nondischargeable in bankruptcy\xe2\x80\xa6.\n1.\n\nQUESTIONS\nStranger Danger: The court slips in the fact that Davis and White didn\xe2\x80\x99t know each\nother before the shooting. Why bother to mention that?\n\n2.\n\nClose Shave: Why might it matter that the bullet passed within twenty-five feet of Tipton?\n\n3.\n\nMix and Match: Tort law recognizes two main kinds of transferred intent: between\npeople and between torts. Plaintiffs can also mix and match across people and torts. In\nre White is an example of intent transferring between people\xe2\x80\x94White intended battery\nagainst Tipton but instead battered Davis (i.e., same tort, different victim). Can you\nthink of hypotheticals in which intent transfers between torts (i.e., same victim, different\ntort)? How about between people and torts (i.e., different tort, different victim)?\n\nC. Consent\nRESTATEMENT (SECOND) OF TORTS \xc2\xa7 892B\nConsent Under Mistake, Misrepresentation or Duress (1965)\n(1) \xe2\x80\xa6 [C]onsent to conduct of another is effective for all\nconsequences of the conduct and for the invasion of any\ninterests resulting from it.\n\xc3\xa3\n\n(2) If the person consenting to the conduct of another is induced to consent by\n[a] a substantial mistake concerning the\n[i] nature of the invasion of his interests or\n[ii] the extent of the harm to be expected from it\nand\n[b] the mistake is\n[i] known to the other or\n[ii] is induced by the other\xe2\x80\x99s misrepresentation,\nthe consent is not effective for the unexpected invasion or harm.\n(3) Consent is not effective if it is given under duress.\n1.\n\n2.\n\n\xc3\xa3\n\nQUESTIONS\nInvalidating Consent: Consent is a defense to battery and assault. If the plaintiff\nconsented to an otherwise harmful or offensive contact, the contact is no longer tortious.\nBut consent isn\xe2\x80\x99t always valid. The Restatement envisions two distinct ways to invalidate\na person\xe2\x80\x99s consent. What are they? Can you think of examples of both types?\nManipulation: Consent is ineffective if given under duress. But how are we to\ndifferentiate between persuasion and coercion? According to the Restatement, the parties\xe2\x80\x99\nage, sex, mental capacity, and relationship may all be significant, as are any \xe2\x80\x9cantecedent\ncircumstances\xe2\x80\x9d and \xe2\x80\x9c[t]he type of conduct to which the other party consents.\xe2\x80\x9d\n\nKhalid Albaih, I AGREE??? (CC BY 2.0) (adapted).\n\n\x0c32\n\nTORT LAW\n\nKOFFMAN v. GARNETT\nSupreme Court of Virginia (2003)\nLacy, Justice:\n\n\xc3\xa3\n\nIn this case we consider whether the trial court\nproperly dismissed the plaintiffs\xe2\x80\x99 second amended\nmotion for judgment for failure to state causes of action\nfor [assault and battery.]\xe2\x80\xa6\nIn the fall of 2000, Andrew W. Koffman, a 13-year old\nmiddle school student at a public school in Botetourt\nCounty, began participating on the school\xe2\x80\x99s football team.\nIt was Andy\xe2\x80\x99s first season playing organized football, and\nhe was positioned as a third-string defensive player.\nJames Garnett was employed by the Botetourt County\nSchool Board as an assistant coach for the football team\nand was responsible for the supervision, training, and instruction of the team\xe2\x80\x99s defensive players.\nThe team lost its first game of the season. Garnett was upset by the defensive players\xe2\x80\x99 inadequate\ntackling in that game and became further displeased by what he perceived as inadequate tackling\nduring the first practice following the loss.\nGarnett ordered Andy to hold a football and \xe2\x80\x9cstand upright and motionless\xe2\x80\x9d so that Garnett\ncould explain the proper tackling technique to the defensive players. Then Garnett, without further\nwarning, thrust his arms around Andy\xe2\x80\x99s body, lifted him \xe2\x80\x9coff his feet by two feet or more,\xe2\x80\x9d and\n\xe2\x80\x9cslammed\xe2\x80\x9d him to the ground. Andy weighed 144 pounds, while Garnett weighed approximately\n260 pounds. The force of the tackle broke the humerus bone in Andy\xe2\x80\x99s left arm. During prior\npractices, no coach had used physical force to instruct players on rules or techniques of playing\nfootball\xe2\x80\xa6. The disparity in size between Garnett and Andy was obvious to Garnett. Because of his\nauthority as a coach, Garnett must have anticipated that Andy would comply with his instructions\nto stand in a non-defensive, upright, and motionless position. Under these circumstances, Garnett\nproceeded to aggressively tackle the much smaller, inexperienced student football player, by lifting\nhim more than two feet from the ground and slamming him into the turf. According to the\nKoffmans\xe2\x80\x99 allegations, no coach had tackled any player previously so there was no reason for Andy\nto expect to be tackled by Garnett, nor was Andy warned of the impending tackle or of the force\nGarnett would use.\nAs the trial court observed, receiving an injury while participating in a tackling demonstration\nmay be part of the sport. The facts alleged in this case, however, go beyond the circumstances of\nsimply being tackled in the course of participating in organized football\xe2\x80\xa6.\nThe trial court held that the second amended motion for judgment was insufficient as a matter\nof law to establish causes of action for the torts of assault and battery. We begin by identifying the\nelements of these two independent torts. The tort of assault consists of an act intended to cause\neither harmful or offensive contact with another person or apprehension of such contact, and that\ncreates in that other person\xe2\x80\x99s mind a reasonable apprehension of an imminent battery. The tort of\nbattery is an unwanted touching which is neither consented to, excused, nor justified. Although\nthese two torts \xe2\x80\x9cgo together like ham and eggs,\xe2\x80\x9d the difference between them is \xe2\x80\x9cthat between\nphysical contact and the mere apprehension of it. One may exist without the other.\xe2\x80\x9d W. Page Keeton,\nProsser and Keeton on Torts \xc2\xa7 10 at 46.\nThe Koffmans\xe2\x80\x99 second amended motion for judgment does not include an allegation that Andy\nhad any apprehension of an immediate battery. This allegation cannot be supplied by inference\nbecause any inference of Andy\xe2\x80\x99s apprehension is discredited by the affirmative allegations that Andy\nhad no warning of an imminent forceful tackle by Garnett. The Koffmans argue that a reasonable\ninference of apprehension can be found \xe2\x80\x9cin the very short period of time that it took the coach to\nlift Andy into the air and throw him violently to the ground.\xe2\x80\x9d At this point, however, the battery\n\n\xc3\xa3\n\nC. Watts, Youth Football (CC BY 2.0).\n\n\x0cCASES & CRITIQUE\n\n33\n\nalleged by the Koffmans was in progress. Accordingly, we find that the pleadings were insufficient\nas a matter of law to establish a cause of action for civil assault.\nThe second amended motion for judgment is sufficient, however, to establish a cause of action\nfor the tort of battery. The Koffmans pled 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 expected or consented to his\n\xe2\x80\x9cparticipation in aggressive contact tackling by the adult coaches.\xe2\x80\x9d Further, the Koffmans pled that,\nin the past, coaches had not tackled players as a method of instruction. Garnett asserts that, by\nconsenting to play football, Andy consented to be tackled, by either other football players or by the\ncoaches.\nWhether Andy consented to be tackled by Garnett in the manner alleged was a matter of fact.\nBased on the allegations in the Koffmans\xe2\x80\x99 second amended motion for judgment, reasonable persons\ncould disagree on whether Andy gave such consent. Thus, we find that the trial court erred in\nholding that the Koffmans\xe2\x80\x99 second amended motion for judgment was insufficient as a matter of\nlaw to establish a claim for battery\xe2\x80\xa6.\nKinser, Justice, concurring in part and dissenting in part:\nI agree with the majority opinion except with regard to the issue of consent as it pertains to the\nintentional tort of battery\xe2\x80\xa6. Absent fraud, consent is generally a defense to an alleged battery. In\nthe context of this case, taking part in a game manifests a willingness to submit to such bodily\ncontacts or restrictions of liberty as are permitted by its rules or usages. However, participating in a\nparticular sport does not manifest consent to contacts which are prohibited by rules or usages of the\ngame if such rules or usages are designed to protect the participants and not merely to secure the\nbetter playing of the game as a test of skill.\nThe thrust of the plaintiffs\xe2\x80\x99 allegations is that they did not consent to \xe2\x80\x9cAndy\xe2\x80\x99s participation in\naggressive contact tackling by the adult coaches\xe2\x80\x9d but that they consented only to Andy\xe2\x80\x99s engaging\n\xe2\x80\x9cin a contact sport with other children of like age and experience.\xe2\x80\x9d They further alleged that the\ncoaches had not previously tackled the players when instructing them about the rules and techniques\nof football.\nIt is notable, in my opinion, that the plaintiffs admitted in their pleading that Andy\xe2\x80\x99s coach was\n\xe2\x80\x9cresponsible\xe2\x80\xa6for the supervision, training and instruction of the defensive players.\xe2\x80\x9d It cannot be\ndisputed that one responsibility of a football coach is to minimize the possibility that players will\nsustain something more than slight injury while playing the sport. A football coach cannot be\nexpected to extract from the game the body clashes that cause bruises, jolts and hard falls. Instead, a\ncoach should ensure that players are able to withstand the shocks, blows and other rough treatment\nwith which they would meet in actual play by making certain that players are in sound physical\ncondition, are issued proper protective equipment, and are taught and shown how to handle\nthemselves while in play. The instruction on how to handle themselves during a game should\ninclude demonstrations of proper tackling techniques. By voluntarily participating in football, Andy\nand his parents necessarily consented to instruction by the coach on such techniques. The alleged\nbattery occurred during that instruction.\nThe plaintiffs alleged that they were not aware that Andy\xe2\x80\x99s coach would use physical force to\ninstruct on the rules and techniques of football since neither he nor the other coaches had done so\nin the past. Surely, the plaintiffs are not claiming that the scope of their consent changed from day\nto day depending on the coaches\xe2\x80\x99 instruction methods during prior practices. Moreover, they did\nnot allege that they were told that the coaches would not use physical demonstrations to instruct the\nplayers.\nAdditionally, the plaintiffs did not allege that the tackle itself violated any rule or usage of the\nsport of football. Nor did they plead that Andy could not have been tackled by a larger, physically\nstronger, and more experienced player either during a game or practice. Tackling and instruction\non proper tackling techniques are aspects of the sport of football to which a player consents when\nmaking a decision to participate in the sport.\nIn sum, I conclude that the plaintiffs did not sufficiently plead a claim for battery. We must\nremember that acts that might give rise to a battery on a city street will not do so in the context of\nthe sport of football\xe2\x80\xa6.\n\n\x0c34\n\nTORT LAW\n\n1.\n\nQUESTIONS\nIn the Blink of an Eye: The court concludes there was no assault, essentially because\nAndy had no warning before the tackle. But wouldn\xe2\x80\x99t Andy have seen Coach Garnett\ncoming toward him? Think carefully about why the court still felt that wasn\xe2\x80\x99t enough, as\nwell as any counterarguments you could have raised to save Andy\xe2\x80\x99s assault claim.\n\n2.\n\nScoping Consent: Austin needs surgery in his right ear. His surgeon, Dr. Fabiana, puts\nhim under anesthesia and operates on his left ear. Has Dr. Fabiana committed battery?\n\n3.\n\nHairdryer Treatment: The court mentions in passing that Andy\xe2\x80\x99s team had lost its first\ngame of the season and that Coach Garnett was upset. Why bring that up? Can you see\nhow it could be legally relevant?\nNEAL v. NEAL\nSupreme Court of Idaho (1994)\n\nTrout, Justice:\n\n\xc3\xa3\n\nThis is an appeal from an order dismissing appellant\xe2\x80\x99s\naction for damages allegedly suffered as a result of an\nadulterous relationship between her husband and his\nmistress\xe2\x80\xa6. In January of 1990, defendant Thomas A. Neal filed\nfor divorce after his wife became aware that he was having an\nextramarital affair. Mary Neal, his wife, counterclaimed for\ndivorce and also asserted tort claims against Thomas Neal and\nJill LaGasse. The gravamen of the claims against Thomas Neal\nand Jill LaGasse center upon allegations of an adulterous\nrelationship between them. Respondents moved to dismiss\nunder Idaho Rule of Civil Procedure 12(b)(6). The trial court\ntreated the motion as one for summary judgment [and granted\nit]\xe2\x80\xa6. On appeal from an order granting summary judgment,\nwe review the pleadings, depositions and admissions on file, together with the affidavits, if any, to\ndetermine whether there is a genuine issue as to any material fact and whether the moving party is\nentitled to judgment as a matter of law.\nI. Recovery for Criminal Conversation\nMary Neal seeks to recover for the respondents\xe2\x80\x99 adulterous conduct which she contends is\nactionable under tort theories of criminal conversation, invasion of privacy, interference with\ncontract, violation of a statutory duty of fidelity and negligence. All of these causes of action are\nbased, factually, on the alleged adulterous affair between Thomas Neal and Jill LaGasse. In addition,\nalthough Mary Neal alleged the various torts cited, the focus of her argument throughout this case\nhas been on her claim of criminal conversation. For these reasons, our discussion here centers on\nthe criminal conversation issue.\nMary Neal contends that criminal conversation remains a viable cause of action under Idaho\nlaw, thereby allowing her to maintain an action for interference with her exclusive sexual\nrelationship with her husband. She further contends that this cause of action, based on her husband\xe2\x80\x99s\nadultery, is grounded in I.C. \xc2\xa7 32\xe2\x80\x93901, which provides that a spouse has a marital duty of mutual\nrespect, fidelity and support, and I.C. \xc2\xa7 18\xe2\x80\x936001, which provides a criminal penalty for adultery. We\naddress these issues in turn.\nBlack\xe2\x80\x99s Law Dictionary 373 (1990) defines \xe2\x80\x9ccriminal conversation\xe2\x80\x9d as\nSexual intercourse of an outsider with husband or wife, or a breaking down of the\ncovenant of fidelity. Tort action based on adultery, considered in its aspect of a\n\n\xc3\xa3\n\nJohn C. Bullas, Divorce Cakes (CC BY-NC-ND 2.0).\n\n\x0cCASES & CRITIQUE\n\n35\n\ncivil injury to the husband or wife entitling him or her to damages; the tort of\ndebauching or seducing of a wife or husband\xe2\x80\xa6.\nCriminal conversation was recognized in Idaho as a common law tort in Watkins v. Lord, 171 P.\n1133 (Ida. 1918). It has its genesis in the proposition that a husband has a property right in his wife\nand her services. This property interest in his wife could be \xe2\x80\x9cstolen\xe2\x80\x9d by a third party through\nadultery. Since a wife was her husband\xe2\x80\x99s property and servant, her consent to the adultery was no\ndefense to her husband\xe2\x80\x99s suit against her paramour. Prosser comments on the basis of criminal\nconversation from Holdsworth, History of English Law 430 (1937), and states that \xe2\x80\x9cit was considered\nthat she [the wife] was no more capable of giving a consent which would prejudice the husband\xe2\x80\x99s\ninterest than would his horse.\xe2\x80\x9d W. Prosser, Law of Torts \xc2\xa7 124 (1971). This Court, and the courts of\nother states, have condemned this reasoning as archaic. O\xe2\x80\x99Neil v. Schuckardt, 733 P.2d 693 (Ida.\n1986) (where this Court abolished the related cause of action of alienation of affections).\nNot since Watkins v. Lord was decided in 1918 has there been a reported case in Idaho involving\ncriminal conversation. We believe that the change in societal views toward women which has\noccurred since then may have much to do with this total absence of case law. Here we take the\nopportunity presented us to hold that criminal conversation has been abolished as a cause of action\nin Idaho.\nThe medieval rationale for the viability of the tort offers the very reason to abolish it. The notion\nthat a wife is the property of her husband offends the right of every woman to be treated as an equal\nmember of society. In abolishing criminal conversation we join a number of jurisdictions which\nhave already done so. See Irwin v. Coluccio, 648 P.2d 458 (Wash. Ct. App. 1982) (listing some\neighteen jurisdictions which have abolished, legislatively or judicially, criminal conversation)\xe2\x80\xa6.\nFinally, we reject Mary Neal\xe2\x80\x99s contention that the adultery statute results in the codification of\ncriminal conversation as a tort and that this Court cannot abolish the tort of criminal conversation\nabsent legislative abolition of the crime of adultery. The existence of a criminal statute proscribing\nadultery seeks recompense for a public wrong. A civil action arises from the violation of a private\nright. The existence of the former does not prevent the elimination of the latter. In addition, the tort\nof criminal conversation has its origins in common law and this Court may modify such law.\nWhile this Court does not condone adultery and continues to hold marriage in the highest\nesteem, we are persuaded, for the reasons given, that the action pursued by Mary Neal does not serve\nto protect the institution of marriage\xe2\x80\xa6. [O]nce such cause of action is brought, it can only serve to\nadd more tension to the family relationship.\nThere are other reasons to abolish the tort of criminal conversation. Revenge, which may be a\nmotive for bringing the cause of action, has no place in determining the legal rights between two\nparties. Further, this type of suit may expose the defendant to the extortionate schemes of the\nplaintiff, since it could ruin the defendant\xe2\x80\x99s reputation. Deterrence is not achieved; the nature of the\nactivities underlying criminal conversation, that is sexual activity, are not such that the risk of\ndamages would likely be a deterrent. Finally, since the injuries suffered are intangible, damage\nawards are not governed by any true standards, making it more likely that they could result from\npassion or prejudice. These negative aspects, combined with the archaic basis for the tort, convince\nus that the ill effects of a suit for criminal conversation outweigh any benefit it may have\xe2\x80\xa6.\nII. Recovery for Battery\nFinally, Mary Neal contends that she has alleged a prima facie case of battery against Thomas\nNeal. Her battery claim is founded on her assertion that although she consented to sexual\nintercourse with her husband during the time of his affair, had she known of his sexual involvement\nwith another woman, she would not have consented, as sexual relations under those circumstances\nwould have been offensive to her. Therefore, she contends that his failure to disclose the fact of the\naffair rendered her consent ineffective and subjects him to liability for battery.\nCivil battery consists of an intentional, unpermitted contact upon the person of another which\nis either unlawful, harmful or offensive. The intent necessary for battery is the intent to commit the\nact, not the intent to cause harm. Further, lack of consent is also an essential element of battery.\n\n\x0c36\n\nTORT LAW\n\nConsent obtained by fraud or misrepresentation vitiates the consent and can render the offending\nparty liable for a battery.\nThe district court concluded that Thomas Neal\xe2\x80\x99s failure to disclose the fact of his sexual\nrelationship with LaGasse did not vitiate Mary Neal\xe2\x80\x99s consent to engage in sexual relations with him,\nsuch consent being measured at the time of the relations. We do not agree with the district court\xe2\x80\x99s\nreasoning. To accept that the consent, or lack thereof, must be measured by only those facts which\nare known to the parties at the time of the alleged battery would effectively destroy any exception\nfor consent induced by fraud or deceit. Obviously if the fraud or deceit were known at the time of\nthe occurrence, the \xe2\x80\x9cconsented to\xe2\x80\x9d act would never occur.\nMary Neal\xe2\x80\x99s affidavit states that: \xe2\x80\x9c[I]f the undersigned had realized that her husband was having\nsexual intercourse with counterdefendant LaGasse, the undersigned would not have consented to\nsexual intercourse with counterdefendant Neal and to do so would have been offensive.\xe2\x80\x9d The district\ncourt opined that because the act was not actually offensive at the time it occurred, her later\nstatements that it would have been offensive were ineffective. This reasoning ignores the possibility\nthat Mary Neal may have engaged in a sexual act based upon a substantial mistake concerning the\nnature of the contact or the harm to be expected from it, and that she did not become aware of the\noffensiveness until well after the act had occurred. Mary Neal\xe2\x80\x99s affidavit at least raises a genuine issue\nof material fact as to whether there was indeed consent to the alleged act of battery.\nThe district court also noted that Mary Neal\xe2\x80\x99s later sexual relations with her husband after\nbecoming aware of his infidelity, extinguished any offensiveness or lack of consent. The fact that she\nmay have consented to sexual relations on a later occasion cannot be said to negate, as a matter of\nlaw, an ineffective consent to prior sexual encounters. Again, her affidavit raises a question of fact\nregarding whether these prior sexual encounters were nonconsensual. This factual issue precluded\nthe dismissal of the battery claim by the district court\xe2\x80\xa6.\n1.\n\nQUESTIONS\nHarmful or Offensive I: What\xe2\x80\x99s Mary\xe2\x80\x99s theory of why this was battery? Does she think\nthe contact was harmful or offensive?\n\n2.\n\nForgive and Forget: Does it matter that Mary had sex with Thomas after discovering the\naffair? What does the court say, and do you agree? Should it affect the legal\ndetermination of whether she consented? How about whether the contact was offensive?\n\n3.\n\nThe Court Giveth and the Court Taketh Away: Why does the court feel empowered to\nabolish the tort of criminal conversation?\nMcPHERSON v. McPHERSON\nSupreme Judicial Court of Maine (1998)\n\nDana, Justice:\nNancy McPherson appeals from the judgment of the Superior\nCourt denying her claims for [assault and battery]. These claims\narise from her claim that her husband, Steven McPherson, infected\nher with a sexually transmitted disease he acquired through an\nextramarital affair\xe2\x80\xa6. Nancy filed a complaint against Steven, after\ntheir divorce, claiming that he had infected her with\xe2\x80\xa6Human\nPapilloma Virus (HPV). Nancy alleged that Steven acquired HPV\nthrough a clandestine extramarital affair with Jane Doe. The\ncomplaint further alleges that Steven transmitted the disease to\nher, prior to their divorce, through sexual intercourse.\nFollowing a jury-waived trial, the court made the following\nfactual findings: that Nancy \xe2\x80\x9chas been and may still be infected\nwith HPV\xe2\x80\x9d; that it is more likely than not that she was infected with\nHPV through sexual contact with another individual; that Steven\nwas the only sexual partner that Nancy has ever had; and that it was more likely than not that Steven\n\n\x0cCASES & CRITIQUE\n\n37\n\ninfected Nancy with HPV. The court also noted that, even though Steven did not then exhibit\nevidence of the HPV infection, \xe2\x80\x9cthis is in no way proof that he is not now in a latent stage nor does\nit demonstrate or have any probative value as to whether or not he was a carrier\xe2\x80\x9d at the time he\nallegedly infected Nancy. The court found further that Steven had a sexual relationship with Doe,\nthat he had sexual intercourse with Nancy after having intercourse with Doe, that he did not disclose\nhis sexual relationship with Doe to Nancy, and that he took no steps to protect Nancy from possible\ninfection with a sexually transmitted disease. Finally, the court found that Steven \xe2\x80\x9cdid not know or\nhave reason to know\xe2\x80\x9d that he might have HPV at the time he infected Nancy because he had no\nphysical symptoms of HPV infection, he had no knowledge of any other partner having symptoms\nof HPV, and he had no medical diagnosis of any kind of a sexually transmitted disease\xe2\x80\xa6.\nThe court found that no assault and battery occurred because the sexual intercourse between\nSteven and Nancy was consensual. She argues that her consent to have sexual intercourse with\nSteven was vitiated by the fact that he failed to inform her of his extramarital affair.\nOne who effectively consents to conduct of another intended to invade his interests cannot\nrecover in an action of tort for the conduct or for harm resulting from it. Consent may be vitiated,\nhowever by misrepresentation:\nIf the person consenting to the conduct of another is induced to consent by a\nsubstantial mistake concerning the nature of the invasion of his interests or the\nextent of the harm to be expected from it and the mistake is known to the other\nor is induced by the other\xe2\x80\x99s misrepresentation, the consent is not effective for the\nunexpected invasion or harm.\nRestatement (Second) of Torts \xc2\xa7 892B(2) (1977). By way of illustration, the Restatement provides:\n\xe2\x80\x9cA consents to sexual intercourse with B, who knows that A is ignorant of the fact that B has a\nvenereal disease. B is subject to liability to A for battery.\xe2\x80\x9d\nNancy argues only that Steven misled her concerning his fidelity. Given the court\xe2\x80\x99s finding that\nSteven neither knew nor should have known of his infection with HPV, however, Nancy cannot\nargue that Steven misled her \xe2\x80\x9cconcerning the nature of the invasion of [her] interest or the extent of\nthe harm to be expected\xe2\x80\x9d therefrom. If the defendant, ignorant of the fact that he was infected with\na sexually transmitted disease, has sexual intercourse with the plaintiff, the defendant will not be\nliable, because the plaintiff consented to the kind of touch intended by the defendant, and both were\nignorant of the harmful nature of the invasion. Thus, Steven may not be held liable for assault and\nbattery\xe2\x80\xa6. Judgment affirmed.\n1.\n\nQUESTIONS\nHarmful or Offensive II: What\xe2\x80\x99s Nancy\xe2\x80\x99s theory of why this was battery? Does she think\nthe contact was harmful or offensive?\n\n2.\n\nSex Ed: The court stresses that there was no reason Steven should have known about his\nHPV infection. What if HPV infection rates had been unusually high in their town?\n\n3.\n\nSeeing the Forest: Now that we\xe2\x80\x99ve covered several key concepts in the law of battery and\nassault, consider how the same facts might be relevant to multiple parts of the overall\nlegal analysis. Can you see the possible overlap between facts establishing the\noffensiveness of a touching, the existence of implicit consent, the scope of consent, and\nthe presence of duress?\nANTI-VAX PROBLEM\n\nIn June 2021, Taylor flew into Canada. Everyone seemed to think that COVID-19 was becoming\na non-issue, especially with the rollout of vaccines in many parts of the world. The CDC had even\nlifted mask recommendations for vaccinated individuals. When Taylor landed in Montreal, she\nnoticed a long line forming under a sign saying \xe2\x80\x9cCOVID-19 Safety Procedures.\xe2\x80\x9d She knew that most\ncountries require travelers to take some sort of precautionary steps, so she joined the queue. As\nTaylor reached the front of the line, a man in a white coat said, \xe2\x80\x9cBonjour-Hi! Roll up your sleeve\n\n\x0c38\n\nTORT LAW\n\nand hold out your arm, s\xe2\x80\x99il vous pla\xc3\xaet.\xe2\x80\x9d She did as he said, and the man injected her with the COVID19 vaccine. Taylor urges that she didn\xe2\x80\x99t want the vaccine and sues for battery.\n(a) Does Taylor have a decent battery claim? Does the man in the white coat have a defense?\n(b) What if the sign had instead said \xe2\x80\x9cTourist Information and Services\xe2\x80\x9d?\n(c) Imagine, instead, that plain-clothes Canadian agents were planted in the middle seat of\neach row of planes flying into Montreal. One of the agents, Jean-Guy, sat next to Taylor.\nThey made small talk, and Jean-Guy, as he was trained to do, convinced Taylor of the\nbenefits of the COVID-19 vaccine. After Taylor receives her shot from the man in the\nwhite coat, she sees Jean-Guy walk out of a nearby door labeled \xe2\x80\x9cauthorized personnel\nonly.\xe2\x80\x9d Ever suspicious of authority figures, Taylor decides to sue for battery and argue\nthat she didn\xe2\x80\x99t freely give consent. What result?\n\nD. Defense of People & Property\nHAEUSSLER v. De LORETTO\nCalifornia Court of Appeals (1952)\nVallee, Justice:\n\n\xc3\xa3\n\n[Plaintiff appeals a judgment in favor of defendant] for\ndamages for assault and battery\xe2\x80\xa6. [O]n May 21, 1950,\nabout 10:30 p.m., plaintiff went to the home of defendant, a\nneighbor, to inquire about his dog which was missing and\nwhich frequently had gone to defendant\xe2\x80\x99s home. The dog\nhad been the subject of disagreement between the wives of\nthe parties on several previous occasions. When defendant,\nin response to plaintiff\xe2\x80\x99s knock, opened the door, the dog\nran out from inside the house. Defendant testified that\nplaintiff immediately started talking in a loud tone of voice, told him he did not want defendant or\nhis wife to feed the dog or keep it at their house; that plaintiff kept \xe2\x80\x9cwaving his hands, and while he\ntalked, his face was pretty flushed and he was pretty excited, like he had been drinking, and he kept\narguing with me and one word led to another and I don\xe2\x80\x99t know the man, but I do know of him. I\nknow he had trouble with the Teamsters\xe2\x80\x99 Union and [he] beat up a couple of friends of mine, and I\ngot a little afraid, and towards the end, after I had asked him to go three times, and he kept waving\nhis hands, I thought he was going to strike me, and I struck him or pushed him, and I went in and\nclosed the door.\xe2\x80\x9d Plaintiff called the police but no arrest was made nor was any criminal action had.\nThe [trial] court found that plaintiff precipitated the argument; defendant ordered plaintiff to\nleave his premises; plaintiff advanced threateningly toward defendant; defendant struck him once;\ntwo of plaintiff\xe2\x80\x99s teeth were loosened, necessitating dental care; defendant used reasonable force in\ndefense of himself and in removing plaintiff from his premises; plaintiff failed to prove by a\npreponderance of evidence that defendant used or attempted to use wilful and unlawful force upon\nthe person of plaintiff.\nThe issue of self-defense was pleaded by defendant and litigated. The determination of which of\nthe two parties precipitated the fight, and whether defendant acted in self-defense, and whether in\nso doing he used more force than was reasonably necessary under the circumstances, were questions\nfor the trier of fact. One who is involved in an altercation with another has the right to use such force\nas is necessary to protect himself from bodily injury, and the question of the amount of force\njustifiable under the circumstances of a particular case is also one for the trier of fact. As the court\nfound that defendant used reasonable force in defense of himself, it necessarily follows the force\nused was not wilful or unlawful and that plaintiff failed to sustain the burden of proof. Since the\nconflicts in the evidence were resolved in defendant\xe2\x80\x99s favor, and the foregoing narration of the\nevidence supports the findings, this court may not disturb the judgment. Affirmed.\n\xc3\xa3\n\nEd Yourdon, Don\xe2\x80\x99t Be a Rude Neighbor (CC BY-NC-SA 2.0).\n\n\x0cCASES & CRITIQUE\n\n1.\n\n39\n\nQUESTIONS\nThe Logic of Self-Defense: How is the availability of self-defense as a legal defense\nconsistent with the goals of tort law? How is it inconsistent?\n\n2.\n\nFactual Findings: The court in Haeussler recounts what happened in great detail. Facts\nare always important in tort law, but detailed factual findings can be particularly crucial\nin judging self-defense. The factfinder\xe2\x80\x94usually the jury, though here the trial judge\xe2\x80\x94\nmust determine whether the defendant actually and reasonably believed it was necessary\nto injure another to avoid injury that was imminent, and that they used no more force\nthan reasonably necessary under the circumstances. Paying attention to each italicized\nword or phrase in that standard, which facts were important?\n\n3.\n\nBut They Started It! If you provoke a fight that then leads you to use force in selfdefense, should you be allowed to escape liability for battery?\nKATKO v. BRINEY\nSupreme Court of Iowa (1971)\n\nMoore, Chief Justice:\n\n\xc3\xa3\n\nThe primary issue presented here is whether an owner may protect\npersonal property in an unoccupied boarded-up farm house against\ntrespassers and thieves by a spring gun capable of inflicting death or serious\ninjury. We are not here concerned with a man\xe2\x80\x99s right to protect his home\nand members of his family. Defendants\xe2\x80\x99 home was several miles from the\nscene of the incident to which we refer infra.\nPlaintiff\xe2\x80\x99s action is for damages resulting from serious injury caused by\na shot from a 20-gauge spring shotgun set by defendants in a bedroom of an\nold farm house which had been uninhabited for several years. Plaintiff and\nhis companion, Marvin McDonough, had broken and entered the house to\nfind and steal old bottles and dated fruit jars which they considered antiques.\nAt defendants\xe2\x80\x99 request plaintiff\xe2\x80\x99s action was tried to a jury consisting of residents of the\ncommunity where defendants\xe2\x80\x99 property was located. The jury returned a verdict for plaintiff and\nagainst defendants for $20,000 actual and $10,000 punitive damages\xe2\x80\xa6.\nMost of the facts are not disputed. In 1957 defendant Bertha L. Briney inherited her parents\xe2\x80\x99\nfarm land in Mahaska and Monroe Counties. Included was an 80-acre tract in southwest Mahaska\nCounty where her grandparents and parents had lived. No one occupied the house thereafter. Her\nhusband, Edward, attempted to care for the land. He kept no farm machinery thereon. The\noutbuildings became dilapidated. For about 10 years, 1957 to 1967, there occurred a series of\ntrespassing and housebreaking events with loss of some household items, the breaking of windows\nand \xe2\x80\x9cmessing up of the property in general.\xe2\x80\x9d The latest occurred June 8, 1967, prior to the event on\nJuly 16, 1967 herein involved.\nDefendants through the years boarded up the windows and doors in an attempt to stop the\nintrusions. They had posted \xe2\x80\x9cno trespass\xe2\x80\x9d signs on the land several years before 1967. The nearest\none was 35 feet from the house. On June 11, 1967 defendants set \xe2\x80\x9ca shotgun trap\xe2\x80\x9d in the north\nbedroom. After Mr. Briney cleaned and oiled his 20-gauge shotgun, the power of which he was well\naware, defendants took it to the old house where they secured it to an iron bed with the barrel\npointed at the bedroom door. It was rigged with wire from the doorknob to the gun\xe2\x80\x99s trigger so it\nwould fire when the door was opened. Briney first pointed the gun so an intruder would be hit in\nthe stomach but at Mrs. Briney\xe2\x80\x99s suggestion it was lowered to hit the legs. He admitted he did so\n\xe2\x80\x9cbecause I was mad and tired of being tormented\xe2\x80\x9d but \xe2\x80\x9che did not intend to injure anyone.\xe2\x80\x9d He gave\nno explanation of why he used a loaded shell and set it to hit a person already in the house. Tin was\nnailed over the bedroom window. The spring gun could not be seen from the outside. No warning\nof its presence was posted.\n\xc3\xa3\n\nSusanne Nilsson, Abandoned Barn (CC BY-SA 2.0).\n\n\x0c40\n\nTORT LAW\n\nPlaintiff lived with his wife and worked regularly as a gasoline station attendant in Eddyville, seven\nmiles from the old house. He had observed it for several years while hunting in the area and\nconsidered it as being abandoned. He knew it had long been uninhabited. In 1967 the area around\nthe house was covered with high weeds. Prior to July 16, 1967 plaintiff and McDonough had been to\nthe premises and found several old bottles and fruit jars which they took and added to their collection\nof antiques. On the latter date about 9:30 p.m. they made a second trip to the Briney property. They\nentered the old house by removing a board from a porch window which was without glass. While\nMcDonough was looking around the kitchen area plaintiff went to another part of the house. As he\nstarted to open the north bedroom door the shotgun went off striking him in the right leg above the\nankle bone. Much of his leg, including part of the tibia, was blown away. Only by\nMcDonough\xe2\x80\x99s assistance was plaintiff able to get out of the house and after crawling some distance was\nput in his vehicle and rushed to a doctor and then to a hospital. He remained in the hospital 40 days.\nPlaintiff\xe2\x80\x99s doctor testified he seriously considered amputation but eventually the healing process\nwas successful. Some weeks after his release from the hospital plaintiff returned to work on crutches.\nHe was required to keep the injured leg in a cast for approximately a year and wear a special brace\nfor another year. He continued to suffer pain during this period.\nThere was undenied medical testimony plaintiff had a permanent deformity, a loss of tissue, and\na shortening of the leg\xe2\x80\xa6. [He] incurred $710 medical expense, $2,056.85 for hospital service, $61.80\nfor orthopedic service and $750 as loss of earnings. In addition thereto the trial court submitted to\nthe jury the question of damages for pain and suffering and for future disability.\nPlaintiff testified he knew he had no right to break and enter the house with intent to steal bottles\nand fruit jars therefrom. He further testified he had entered a plea of guilty to larceny in the\nnighttime of property of less than $20 value from a private building. He stated he had been fined $50\nand costs and paroled during good behavior from a 60-day jail sentence. Other than minor traffic\ncharges this was plaintiff\xe2\x80\x99s first brush with the law. On this civil case appeal it is not our prerogative\nto review the disposition made of the criminal charge against him.\nThe main thrust of defendants\xe2\x80\x99 defense in the trial court and on this appeal is that \xe2\x80\x9cthe law\npermits use of a spring gun in a dwelling or warehouse for the purpose of preventing the unlawful\nentry of a burglar or thief.\xe2\x80\x9d\xe2\x80\xa6 In the statement of issues the trial court stated plaintiff and his\ncompanion committed a felony when they broke and entered defendants\xe2\x80\x99 house. [The trial court\ninstructed the jury that the property owners were not permitted to use excessive force, including\nforce likely to cause death or great bodily harm, to protect their property, unless it would prevent\nviolent felonies that themselves would endanger human life. The instructions explained that\nbreaking and entering did not rise to this level of violent felony.]\xe2\x80\xa6\nThe overwhelming weight of authority\xe2\x80\xa6supports the trial court\xe2\x80\x99s statement of the applicable\nprinciples of law\xe2\x80\xa6. Restatement of Torts, section 85, page 180, states:\nThe value of human life and limb, not only to the individual concerned but also\nto society, so outweighs the interest of a possessor of land in excluding from it\nthose whom he is not willing to admit thereto that a possessor of land has, as is\nstated in \xc2\xa7 79, no privilege to use force intended or likely to cause death or serious\nharm against another whom the possessor sees about to enter his premises or\nmeddle with his chattel, unless the intrusion threatens death or serious bodily\nharm to the occupiers or users of the premises\xe2\x80\xa6. A possessor of land cannot do\nindirectly and by a mechanical device that which, were he present, he could not\ndo immediately and in person. Therefore, he cannot gain a privilege to install, for\nthe purpose of protecting his land from intrusions harmless to the lives and limbs\nof the occupiers or users of it, a mechanical device whose only purpose is to inflict\ndeath or serious harm upon such as may intrude, by giving notice of his intention\nto inflict, by mechanical means and indirectly, harm which he could not, even\nafter request, inflict directly were he present.\nIn Volume 2, Harper and James, The Law of Torts, section 27.3, pages 1440, 1441, this is found:\n\n\x0cCASES & CRITIQUE\n\n41\n\nThe possessor of land may not arrange his premises intentionally so as to cause\ndeath or serious bodily harm to a trespasser. The possessor may of course take\nsome steps to repel a trespass. If he is present he may use force to do so, but only\nthat amount which is reasonably necessary to effect the repulse. Moreover if the\ntrespass threatens harm to property only\xe2\x80\x94even a theft of property\xe2\x80\x94the possessor\nwould not be privileged to use deadly force, he may not arrange his premises so\nthat such force will be inflicted by mechanical means. If he does, he will be liable\neven to a thief who is injured by such device\xe2\x80\xa6.\nThe legal principles stated by the trial court in [its] instructions\xe2\x80\xa6are well established and\nsupported by the authorities cited and quoted supra. There is no merit in defendants\xe2\x80\x99 objections and\nexceptions thereto\xe2\x80\xa6.\nLarson, Justice, dissenting:\nI respectfully dissent, first, because the majority wrongfully assumes that by installing a spring\ngun in the bedroom of their unoccupied house the defendants intended to shoot any intruder who\nattempted to enter the room. Under the record presented here, that was a fact question. Unless it is\nheld that these property owners are liable for any injury to an intruder from such a device regardless\nof the intent with which it is installed, liability under these pleadings must rest upon two definite\nissues of fact, i.e., did the defendants intend to shoot the invader, and if so, did they employ\nunnecessary and unreasonable force against him?\xe2\x80\xa6\n[The jury should have been instructed that it could not impose liability unless it found the\ndefendants intended to kill or seriously injure an intruder by setting up the spring gun. A reasonable\njury could have found that such intent was lacking because of testimony claiming the gun was only\nset up to scare intruders.]\nIn the case at bar the plaintiff was guilty of serious criminal conduct, which event gave rise to his\nclaim against defendants. Even so, he may be eligible for an award of compensatory damages which\nso far as the law is concerned redresses him and places him in the position he was prior to sustaining\nthe injury. The windfall he would receive in the form of punitive damages is bothersome to the\nprinciple of damages, because it is a response to the conduct of the defendants rather than any\nreaction to the loss suffered by plaintiff or any measurement of his worthiness for the award.\nWhen such a windfall comes to a criminal as a result of his indulgence in serious criminal conduct,\nthe result is intolerable and indeed shocks the conscience. If we find the law upholds such a result, the\ncriminal would be permitted by operation of law to profit from his own crime\xe2\x80\xa6. We cannot in good\nconscience ignore the conduct of the plaintiff. He does not come into court with clean hands, and\nattempts to make a claim to punitive damages in part on his own criminal conduct. In such\ncircumstances, to enrich him would be unjust, and compensatory damages in such a case itself would\nbe a sufficient deterrent to the defendant or others who might intend to set such a device\xe2\x80\xa6. The\nadmonitory function of the tort law is adequately served where the compensatory damages claimed\nare high and the granted award itself may act as a severe punishment and a deterrence. In such a case\nas we have here there is no need to hold out the prospect of punitive damages as an incentive to sue\nand rectify a minor physical damage such as a redress for lost dignity\xe2\x80\xa6.\n1.\n\nQUESTIONS\nThe Underlying Tort: Did Briney commit a battery? Did he have the requisite intent?\nHow could Katko rely on Garratt v. Dailey to support his claim? Even if there wasn\xe2\x80\x99t a\nbattery, was there an assault?\n\n2.\n\nSelf-Help: If the spring gun wasn\xe2\x80\x99t a permissible option, what else could Briney have\ndone to protect his property? Is there anything he could have done with the gun that\nwould have been constituted reasonable force?\n\n3.\n\nUnclean Hands: Should it matter that Katko was committing a crime when he was shot?\n\n\x0c42\n\nTORT LAW\n\nE. False Imprisonment\nFOJTIK v. CHARTER MEDICAL CORP.\nCourt of Appeals of Texas (1999)\nChavez, Justice:\n\n\xc3\xa3\n\nFelix Fojtik appeals from a\xe2\x80\xa6summary judgment entered\nagainst him on his claim against Charter Medical Corporation.\nFojtik had brought a false imprisonment cause of\naction against Charter arising from his stay at a Charter\nhospital where he was treated for alcoholism\xe2\x80\xa6. We affirm the\njudgment of the trial court\xe2\x80\xa6.\nFojtik\xe2\x80\x99s admission to Charter was preceded by an\n\xe2\x80\x9cintervention,\xe2\x80\x9d where Dorrill Nabours and Valerie Bullock\nfrom Charter, along with a group of Fojtik\xe2\x80\x99s family and friends, confronted him and told him that\nhe needed to go through an inpatient treatment at Charter for alcohol abuse. Fojtik\xe2\x80\x99s medical records\nindicate that he told Charter staff he had admitted himself to Charter because those conducting the\n\xe2\x80\x9cintervention\xe2\x80\x9d had told him that, if he did not voluntarily admit himself, they would have him\ncommitted to the hospital and have him brought in wearing handcuffs. When admitted, Fojtik was\nangry about being at Charter and refused to be photographed or to agree to permit Charter to\ncontact him after he left the treatment program. While at the hospital Fojtik made several requests\nfor a \xe2\x80\x9cpass\xe2\x80\x9d permitting him to leave the Charter facility. His initial requests were denied on the\nground that he was not \xe2\x80\x9celigible\xe2\x80\x9d for a pass until he was further into his stay. Fojtik expressed his\nopinion that he was getting a \xe2\x80\x9craw deal\xe2\x80\x9d because he was \xe2\x80\x9clocked up and couldn\xe2\x80\x99t get away.\xe2\x80\x9d Later\nFojtik was granted passes for a few hours at a time, and always returned to Charter voluntarily and\non time. Fojtik explained that he had vowed to follow all of the rules at Charter. Although nothing\nin the record explains the reason Fojtik made this \xe2\x80\x9cvow,\xe2\x80\x9d he argues on appeal that he had decided to\nfollow all the rules only because he hoped that obedient behavior might speed his release.\nCharter produced summary judgment evidence that Fojtik was free to leave at any time. Charter\nemployees explained that, although they used a system of \xe2\x80\x9cpasses\xe2\x80\x9d and preferred to follow certain\nprocedures when patients left the hospital, if a patient insisted on leaving without following Charter\nprocedures, Charter would permit the patient to leave. Charter also refers us to Fojtik\xe2\x80\x99s admission\ndocuments, which indicate that he consented to inpatient treatment\xe2\x80\xa6.\nThe elements of a false imprisonment cause of action are: (1) willful detention by the defendant,\n(2) without consent of the detainee, and (3) without authority of law. A detention may be\naccomplished by violence, by threats, or by any other means that restrain a person from moving\nfrom one place to another. Where it is alleged that a detention is effected by a threat, the plaintiff\nmust demonstrate that the threat was such as would inspire in the threatened person a just fear of\ninjury to his person, reputation, or property. Threats to call the police are not ordinarily sufficient\nin themselves to effect an unlawful imprisonment. In determining whether such threats are\nsufficient to overcome the plaintiff\xe2\x80\x99s free will, factors such as the relative size, age, experience, sex,\nand physical demeanor of the participants may be considered\xe2\x80\xa6.\nAlthough Fojtik was not physically restrained, he alleges that he was detained against his will by\nthreats that, if he did not submit to his detention, he would be forcibly committed and \xe2\x80\x9cbrought in\nin handcuffs.\xe2\x80\x9d Fojtik also contends that Charter used \xe2\x80\x9cother means\xe2\x80\x9d in addition to threats of\ncommitment in order to restrain him. We first consider whether the evidence raises a question of\nfact regarding whether Fojtik was restrained by threats.\nA review of false imprisonment case law is instructive. In Black v. Kroger, an eighteen year old\nwoman with a tenth grade education and a two-year-old daughter was accused by her employers of\nstealing. She was led into a small, windowless room lit by bare light bulbs, where the store manager\nand another man who worked for \xe2\x80\x9cKroger Security\xe2\x80\x9d were waiting. She was told repeatedly that they\nknew she had been stealing, and that if she did not admit to stealing they would handcuff her and\ntake her to jail. She testified that she made a false confession, explaining \xe2\x80\x9cI just had it in my head\n\xc3\xa3\n\nKay Vee, Alcoholics Anonymous (CC BY-NC-SA 2.0).\n\n\x0cCASES & CRITIQUE\n\n43\n\nthat they were going to put me in jail no matter what I did, and I wasn\xe2\x80\x99t going to see my little girl for\na long, long time.\xe2\x80\x9d The court noted the woman\xe2\x80\x99s lack of business experience and the harsh and\nintimidating nature of her questioning. The court held that under these facts the jury could have\nreasonably concluded that the threats to the woman intimidated her to the point where she was not\nfree to leave and was unreasonably detained.\nSkillern & Sons, Inc. v. Stewart presents a similar set of facts. A female employee was accused of\nstealing. She was led by the arm to a room where two men she had never met beat on a desk while telling\nher \xe2\x80\x9cwe have the goods on you\xe2\x80\xa6we know you\xe2\x80\x99ve been stealing money.\xe2\x80\x9d She was threatened with\nimprisonment, and told that she could not leave until she wrote a confession. She managed to leave, but\nwas ordered back, and again told that she would either sign a confession or she would go to jail, but that\nshe could not leave without confessing. When she tried to stand up she was physically pushed back into\na chair by her accusers. These facts were held to support a recovery for false imprisonment.\nIn Safeway Stores, Inc. v. Amburn, the evidence was held insufficient to support a finding that\nthe plaintiff was falsely imprisoned. In this case as well, an employee was led to a secluded room\nwhere others were waiting to accuse him of theft. The employee\xe2\x80\x99s path to the door, if he had desired\nto leave, was not blocked. The only physical contact between the employee and his accusers was a\nhandshake. When the employee denied stealing anything he was accused of lying and threatened\nwith jail. The employee spent thirty to forty minutes with his accusers. The court held that, where\nthere is nothing else particularly overbearing about this kind of meeting, threats of imprisonment\nare not enough to establish a claim for false imprisonment, and the court reversed the jury\xe2\x80\x99s verdict\nin the plaintiff\xe2\x80\x99s favor.\nIn Randall\xe2\x80\x99s Food Markets, Inc. v. Johnson, the plaintiff was a store employee accused of stealing.\nShe was told to either wait in an office or to work on a volunteer project in a particular area. She\nwaited in the office, but left twice and returned each time. The Texas Supreme Court rejected the\nplaintiff\xe2\x80\x99s contention that the store management had impliedly threatened her person, because no\none was guarding her and she had in fact left the office twice. Summary judgment in favor of the\nstore on the employee\xe2\x80\x99s false imprisonment claim was upheld.\nIn evaluating Fojtik\xe2\x80\x99s claim of false imprisonment, the issue is essentially this: to what extent\nmust plaintiffs insist on their freedom and have it denied to them before they can recover for false\nimprisonment? Under some circumstances, a combination of the plaintiff\xe2\x80\x99s vulnerability and\noppressive circumstances permit recovery, even when the plaintiffs does not actually resist their\ndetention. Comparing the facts of this case to previous reported cases, however, indicates that this\nis not one of those cases. None of the factors that are considered in evaluating whether threats are\nsufficient to overcome the plaintiff\xe2\x80\x99s free will, i.e., the relative size, age, experience, sex, and physical\ndemeanor of the participants, weigh in Fojtik\xe2\x80\x99s favor. Fojtik was a forty-five-year-old man who had\nrun several businesses. He was not a young, inexperienced woman, like the plaintiff in Black. He was\nnot physically restrained, like the plaintiff in Skillern. Although he was threatened with the police,\nthere were no other factors adding to the intimidating effect of those threats, and, as\nin Amburn, such threats, standing alone, are not enough to establish false imprisonment. Fojtik left\nand voluntarily returned, as the plaintiff did in Johnson, where the plaintiff\xe2\x80\x99s actions were held to\nnegate her false imprisonment theory.\nFojtik contends that his frequent comments at Charter about being \xe2\x80\x9clocked up\xe2\x80\x9d and his generally\nuncooperative attitude are evidence that he did not consider himself free to leave. While it may be\ntrue that Fojtik considered himself restrained, the issue is not Fojtik\xe2\x80\x99s subjective interpretation of his\nsituation, but rather whether he had a just fear of injury. The facts of this case do not raise a fact issue\non whether Fojtik had a \xe2\x80\x9cjust fear\xe2\x80\x9d of injury. The record before us indicates that, while Fojtik certainly\ncomplained about being at Charter, he never insisted that he be permitted to leave. As discussed\nabove, there is nothing in this case to suggest that Fojtik was a person whose weakness or susceptibility\nto intimidation might excuse his failure to insist on leaving when he felt he was falsely imprisoned.\nAside from threats of legal commitment, the \xe2\x80\x9cother means\xe2\x80\x9d of restraint identified by Fojtik are:\n(1) constantly telling him that he was an alcoholic and treating him as though he were, and\n(2) permitting him to leave on temporary passes. Appellant\xe2\x80\x99s argument appears to be that these\nmethods lessened his will to insist on being released. We do not believe that such trifling matters as\nthese constitute restraint. Treating Fojtik as an alcoholic did not restrain him; if it contributed to his\n\n\x0c44\n\nTORT LAW\n\nongoing presence at the Charter hospital, it did so by persuading Fojtik that he did have a problem\nwith alcohol that should be addressed, not by any actual restraint. The fact that Charter\npermitted Fojtik to leave on passes undermines his claim for false imprisonment rather than\nsupporting it\xe2\x80\xa6.\n1.\n\nQUESTIONS\nStereotypes: Detentions may be accomplished through violence, threats, or other means\nof restraint. What types of threats are legally sufficient? What factors are considered?\nHow might characteristics like gender or race become relevant? Should they be?\n\n2.\n\nSupermarket Sweep: Map out the features of Black, Skillern, Safeway, Randall\xe2\x80\x99s, and\nFojtik\xe2\x80\x94the reason for the detention, the nature of the explicit or implicit threat, the\ncharacteristics of the people involved, and the courts\xe2\x80\x99 ultimate conclusions. Can you\ndiscern a logic tying these cases together? Or is each court just making it up on the fly?\n\n3.\n\nBlissful Ignorance: Some states require plaintiffs claiming false imprisonment to show\nthat they were aware of their confinement, while other states don\xe2\x80\x99t. Which states have\nthe better rule? Why?\nGRANT v. STOP-N-GO MARKET OF TEXAS, INC.\nCourt of Appeals of Texas (1999)\n\nO\xe2\x80\x99Connor, Justice:\n\n\xc3\xa3\n\nGerald Grant, the appellant, sued Stop-N-Go Market of Texas, Inc.,\nthe appellee, for false imprisonment\xe2\x80\xa6. The trial court granted summary\njudgment in favor of Stop-N-Go. We reverse and remand\xe2\x80\xa6.\nThe elements of false imprisonment are (1) a willful detention, (2)\nwithout consent, and (3) without authority of law. Stop-N-Go argues it\nnegated the first two elements of Grant\xe2\x80\x99s claim because it established\nGrant was not wilfully detained without his consent. Stop-N-Go argues\nGrant chose to remain in the store, and he could have left if he so desired.\nIn the alternative, Stop-N-Go argues it negated the third element of a\nfalse imprisonment claim because its actions were authorized by law\nunder Chapter 124 of the Civil Practice and Remedies Code.\n1. The Summary Judgment Evidence\n\xe2\x80\xa6The summary judgment evidence is summarized as follows.\nGrant\xe2\x80\x99s Deposition Testimony\nIn his deposition, Grant said he went to the Stop-N-Go store with his girlfriend. His girlfriend\nstayed in the car, which was parked in front of the door to the store. Grant paid for a can of beer,\nand then decided he wanted to buy some potato chips. He left the bag with the can of beer on the\ncounter, and picked out two bags of potato chips which were marked on sale, two for 99 cents. Grant\nreturned to the clerk and laid both bags of potato chips on the counter along with a one dollar bill.\nThe store clerk rang up the chips at 69 cents each. Grant told the clerk that the chips were on\nsale. The store clerk said something to Grant, but Grant did not understand what was said because\nthe clerk spoke with a heavy foreign accent. The store clerk and Grant went back to the chip display.\nThe clerk told Grant that the chips he selected were not on sale, but that another brand was on sale.\nAlthough Grant thought the clerk was wrong, he decided to buy the brand that the clerk said was on\nsale because he was in a hurry.\nAs the clerk began to total the price for the two bags of chips, Grant noticed someone leaning\nthrough the window of his car and apparently talking to his girlfriend. The appellant became\nconcerned for his girlfriend because he did not recognize the person. He went to the door to make\nsure she was alright. As Grant walked to the door, he picked up the one dollar bill which he had\n\xc3\xa3\n\nJames Offer, CCTV Heads \xe2\x80\x93 d*base (CC BY-NC-SA 2.0).\n\n\x0cCASES & CRITIQUE\n\n45\n\npreviously laid on the counter. Grant opened the door to the store with his right hand and held the\ndollar bill in his left hand. After determining that the person leaning on his car was an acquaintance,\nGrant returned to the counter, paid for the two bags of chips, and began to walk out of the store. As\nhe walked away from the counter, Grant told the clerk that he (the clerk) needed to learn his job\nbetter, a reference to the verbal altercation concerning the price of the chips.\nJust as Grant reached the door, the store manager, Calhoun, came from the back of the store,\ngrabbed him by the arm, and said words to the effect, \xe2\x80\x9che (the clerk) is doing his job well, let\xe2\x80\x99s talk\nabout the cigarettes that you stole.\xe2\x80\x9d Grant said he was pulled back when Calhoun grabbed his arm.\nWhen Calhoun made the accusation against Grant, his voice was loud enough that all the patrons\nin the store heard what he was saying. Calhoun said words to the effect, \xe2\x80\x9ceverything was on a\nsurveillance videotape and there is nothing to talk about.\xe2\x80\x9d\nGrant said Calhoun went behind the counter and asked the store clerk three times what it was\nthat Grant had stolen. The clerk did not respond until Calhoun asked if a pack of cigarettes was on\nthe counter, to which the clerk responded affirmatively. Calhoun repeated his accusation that Grant\nstole a pack of cigarettes and passed them through the door.\nGrant tried to explain to Calhoun that he did not steal any cigarettes. Grant said Calhoun told\nhim to shut up. Grant said he got real quiet after Calhoun told him to shut up because he was afraid.\nAfter Calhoun grabbed him and accused him of stealing, Grant felt he could not leave. He thought\nif he did leave, the police would come looking for him.\nCalhoun\xe2\x80\x99s Affidavit\nIn his affidavit, Calhoun said he was in the back room of the store where a monitor for the store\xe2\x80\x99s\nsurveillance camera was located. On the monitor, he saw Grant pick up something from the counter\nwhich appeared to him to be a pack of cigarettes. Calhoun said Grant went to the door and stepped\nat least part way outside, while still holding the object in his hand. Calhoun said a car was parked\ndirectly in front of the door to the store. He then saw Grant return to the counter and complete his\npurchase. However, Calhoun did not see Grant return the item that he picked up from the counter.\nCalhoun said he left the back room and approached Grant as he was leaving the store because,\nafter watching the monitor, he believed Grant had passed a pack of cigarettes out the door. He put\nhis hand on Grant\xe2\x80\x99s arm to get his attention, and then he asked Grant about the cigarettes he thought\nwere stolen. Calhoun said his hand was only on Grant\xe2\x80\x99s arm for a few seconds because, as soon as\nGrant turned around, Calhoun quit touching his arm.\nAccording to Calhoun\xe2\x80\x99s affidavit, Grant denied stealing any cigarettes. Calhoun thought Grant\xe2\x80\x99s\nattitude was hostile and somewhat threatening, and so he decided to call the police to investigate the\nmatter. He said he feared a confrontation with Grant. Calhoun said that when he told Grant he was\ngoing to call the police, Grant responded by saying to go ahead and call the police.\nThe police arrived within 15 to 20 minutes. Calhoun said Grant and the officer viewed the\nsurveillance video. He said Grant told the officer he had picked up a dollar before stepping out the\ndoor. Calhoun told the officer he thought the object Grant picked up looked like a pack of cigarettes.\nAccording to Calhoun, the officer said he would take Grant in, but Calhoun never asked or directed\nthe officer to do so. Calhoun gave the officer the surveillance video, and then the officer left the store\nwith Grant.\nCalhoun said he had no physical contact with Grant other than the initial touching to get Grant\xe2\x80\x99s\nattention. Once he got his attention, Calhoun said he and Grant remained on opposite sides of the\ncounter while they waited for the police. Calhoun said a woman, perhaps Grant\xe2\x80\x99s girlfriend, came\ninto the store and waited with Grant. Calhoun said nobody threatened Grant, nobody told Grant he\ncould not leave, nobody prevented Grant from leaving, and nobody told Grant he was under arrest.\nAccording to Calhoun, Grant had a clear path to the door, nothing prevented Grant from leaving\nthe store, Grant was never directed to remain in the store, and Grant was not put in or asked to go\nto a back room.\nThe Surveillance Videotape\nGrant claims the surveillance videotape is the best evidence to determine the reasonableness of\nCalhoun\xe2\x80\x99s belief that he stole cigarettes and of Calhoun\xe2\x80\x99s actions\xe2\x80\xa6. The police report states the\n\n\x0c46\n\nTORT LAW\n\nvideotape was returned to Stop-N-Go\xe2\x80\xa6. However, in a response to a request to produce the\nsurveillance videotape, Stop-N-Go said, \xe2\x80\x9cnone.\xe2\x80\x9d During oral argument before this Court, Stop-NGo said the tape was lost.\nThe Police Report\nIn the police report, Officer Anderson said when he walked into the Stop-N-Go store, Calhoun\nand Grant were arguing. Calhoun told the officer Grant stole a pack of cigarettes, and that it would\nbe on the surveillance video. Anderson said he took Grant to the station to view the videotape. After\nreviewing the tape with Sergeant Hartley, Anderson determined the allegations against Grant were\nunfounded and released him. Anderson said the videotape was returned to Stop-N-Go.\n2. Willful Detention Without Consent\nStop-N-Go relies on Morales v. Lee, 668 S.W.2d 867, 869 (Tex. Ct. App. 1984), to argue that\nGrant was not willfully detained without his consent as a matter of law. It argues Grant was not\ndetained because he was not restrained from moving from one place to another. When, as here, a\nplaintiff alleges the detention was effected by a threat, the plaintiff must demonstrate the threat was\nsuch as would inspire a just fear of injury to his person, reputation, or property\xe2\x80\xa6. According to\nGrant, Calhoun told Grant he could not leave and that he (Calhoun) was calling the police. This\ncontradicts Calhoun\xe2\x80\x99s affidavit, in which Calhoun said he did not tell Grant that he could not leave.\nThis raises a genuine issue of material fact concerning whether Grant was detained, and whether he\nconsented to stay in the store.\nStop-N-Go also argues that threats of future actions, such as to call the police, are not sufficient\nto constitute false imprisonment. However, Calhoun did more than threaten to call the police; he\nactually called the police. Grant said he was afraid of what was going to happen; he had never been\nin trouble with the police before. He was afraid to try and leave the store because Calhoun had\nalready grabbed him and told him not to leave. Grant was afraid that if he left, he would be labeled\na fugitive from justice, causing even more damage to his reputation\xe2\x80\xa6. [W]e conclude Grant raised\nfact issues concerning whether he was willfully detained without his consent.\n3. The Shopkeeper\xe2\x80\x99s Privilege\nIn its motion for summary judgment, Stop-N-Go claimed its actions were authorized by law\nunder Civil Practice and Remedies Code section 124.001, the shopkeeper\xe2\x80\x99s privilege. If this is true,\nthen Stop-N-Go would have negated the third element of Grant\xe2\x80\x99s false imprisonment claim. Grant\nargues he raised genuine issues of material fact regarding whether Stop-N-Go established this\nprivilege as a matter of law.\nStop-N-Go\xe2\x80\x99s only summary judgment evidence was from an interested witness, Calhoun.\nCalhoun\xe2\x80\x99s affidavit explains what Calhoun saw on the surveillance monitor. The videotape is the\nbest evidence of what happened. However, Stop-N-Go has refused to produce the videotape, and\neach time Stop-N-Go was asked for it, it gave a different reason why it could not be produced.\nThe shopkeeper\xe2\x80\x99s privilege provides that a person who reasonably believes another person has\nstolen, or is attempting to steal property, is privileged to detain that person in a reasonable manner\nand for a reasonable time to investigate ownership of the property. Thus, there are three components\nto the shopkeeper\xe2\x80\x99s privilege: (1) a reasonable belief a person has stolen or is attempting to steal;\n(2) detention for a reasonable time; and (3) detention in a reasonable manner\xe2\x80\xa6. [T]he shopkeeper\xe2\x80\x99s\nprivilege is limited in its application to false imprisonment claims arising from investigative\ndetentions. The test of liability is not based on the store patron\xe2\x80\x99s guilt or innocence, but instead on\nthe reasonableness of the store\xe2\x80\x99s action under the circumstances; the trier of fact usually determines\nwhether reasonable belief is established. Whether Calhoun was reasonable in believing Grant had\ncommitted a theft, or reasonable in detaining Grant, is a question to be determined by the jury.\nStop-N-Go relies on Wal-Mart v. Resendez, 962 S.W.2d 539 (Tex. 1998), to argue that a ten to\n15 minute detention is reasonable as a matter of law. This is a true statement of the law in Resendez.\nWhile Resendez held a ten to 15 minute detention was reasonable as a matter of law, it so held,\n\xe2\x80\x9cwithout deciding the outer parameters of a permissible period of time under section 124.001.\xe2\x80\x9d\nResendez does not support Stop-N-Go\xe2\x80\x99s position, because Grant was detained for more than ten to\n15 minutes. According to Calhoun, the police arrived 15 to 20 minutes after they were called. Once\n\n\x0cCASES & CRITIQUE\n\n47\n\nthe police arrived, they viewed the tape at the store, and then they took Grant to the police station\nand viewed the tape again. Grant said he spent approximately an hour in police custody. Thus,\nGrant\xe2\x80\x99s detention lasted for more than an hour and 20 minutes\xe2\x80\xa6.\nStop-N-Go did not negate any element of Grant\xe2\x80\x99s false imprisonment claim as a matter of law,\nand Grant raised genuine issues of material fact on each element. Therefore, summary judgment on\nthis claim was improper.\n1.\n\n2.\n\nQUESTIONS\nThe Fuzz: Stop-N-Go argues that Grant was free to leave, but Grant claims he wasn\xe2\x80\x99t\nbecause Calhoun said the police were being called. This disputed fact is key to resolving\ntwo distinct parts of the legal analysis. What are they?\nPosse Comitatus: Going beyond the shopkeeper\xe2\x80\x99s\nprivilege, some states allow citizens to make\narrests in other settings, creating legal privileges\nfor people who witness crimes. These laws date\nback to medieval times, when King Edward I\nlacked an organized police force in the late 1200s.\nThe legal concept traveled across the pond to the\nUnited States, where it could take days for law\nenforcement to travel to crime scenes during the country\xe2\x80\x99s infancy. Nowadays, these\nlaws usually permit arrests when a serious crime (often a felony) has been committed\nand the person effecting the arrest has probable cause (i.e., objectively reasonable\ngrounds) to believe that the detainee committed it. Should these laws apply so broadly?\nShould they be limited to special circumstances, like shopkeepers catching shoplifters or\nrestaurant owners witnessing \xe2\x80\x9cdine and dash\xe2\x80\x9d customers? Or should they be repealed\nentirely? This question became national news in 2020 after\nthe killing of Ahmaud Arbery, a young Black man from\nBrunswick, Georgia. While Arbery was jogging, three white\nmen pursued him before one of the men, Travis McMichael,\nshot and killed Arbery. The men claimed Arbery resembled\na suspect in a string of burglaries, though nothing ever linked\nhim to those incidents. Lawmakers responded by repealing\nGeorgia\xe2\x80\x99s citizen\xe2\x80\x99s arrest law, making it the first state in the\ncountry to do so. Should other states follow suit? What are\nsome of the benefits of deputizing private citizens with police\npowers? What are some of the risks and problems?\n\xc3\xa3\n\nBAR TRIP PROBLEM\nIt\xe2\x80\x99s July 2025. Zay lands at LaGuardia after his post-Bar Exam trip to Jamaica. Unbeknownst to\nhim, the local New York police have been investigating a smuggling operation that Andre is suspected\nof orchestrating from the Caribbean island. The police believe Andre is on Zay\xe2\x80\x99s flight. Unfortunately,\nZay has the same green suitcase as Andre\xe2\x80\x94a suitcase that the police know Andre owns.\nAt baggage claim, Zay grabs what he thinks is his bag and walks toward the exit, but the sniffer\ndogs lunge at him and alert their handlers to the scent of drugs. The police handcuff Zay before\nlocking him in an interrogation room with his hands and feet tied while they question him.\nZay is released seven hours later after the confusion gets cleared up. On his way home, he calls\nyou, his old Torts classmate, and asks if he can sue for false imprisonment.\n(a) What do you tell Zay?\n\n\xc3\xa3\nMatthew Almon Roth, Black Lives Matter March in Portland, OR. June 4, 2020 (CC BY-NC 2.0); Steve Devol, Ahmaud\nArbery Memorial (CC BY-NC-SA 2.0).\n\n\x0c48\n\nTORT LAW\n\n(b) What if, instead, Zay wasn\xe2\x80\x99t handcuffed and the officers say \xe2\x80\x9cplease come with us\xe2\x80\x9d before\nhe walks into an interrogation room where the door is left open and he isn\xe2\x80\x99t tied up?\n(c) Imagine that the police never stop Zay at the airport. He makes it to his apartment with\nAndre\xe2\x80\x99s drug-filled bag. His neighbor, Davis, owns a German Shepherd that he has\ntrained to sniff drugs. As Zay walks up the stairs and Davis is on his way down to let his\ndog out, the dog alerts. Davis, an aspiring police officer, blocks the staircase and tells\nZay, \xe2\x80\x9cDon\xe2\x80\x99t move or I\xe2\x80\x99ll sic my dog on you, and sit tight while I call the cops.\xe2\x80\x9d It takes\ntwenty minutes for the police to arrive, followed by two hours of officers questioning\nZay on the staircase before they tell him he can return to his apartment. Zay sues Davis,\nwho, having read online about the hunt to catch Andre, argues that he was acting under\nthe authority of the law. What result?\n\n\x0cCASES & CRITIQUE\n\nCHAPTER\n\n2:\n\n49\n\nPROPERTY TORTS\n\nA. Trespass to Land\nJACQUE v. STEENBERG HOMES, INC.\nSupreme Court of Wisconsin (1997)\nBablitch, Justice:\n\n\xc3\xa3\n\nSteenberg Homes had a mobile home to\ndeliver. Unfortunately for Harvey and Lois\nJacque (the Jacques), the easiest route of\ndelivery was across their land. Despite\nadamant protests by the Jacques, Steenberg\nplowed a path through the Jacques\xe2\x80\x99 snowcovered field and via that path, delivered the\nmobile home\xe2\x80\xa6. At trial, Steenberg Homes\nconceded the intentional trespass, but argued\nthat no compensatory damages had been proved, and that punitive damages could not be awarded\nwithout compensatory damages\xe2\x80\xa6. We conclude that when nominal damages are awarded for an\nintentional trespass to land, punitive damages may, in the discretion of the jury, be awarded\xe2\x80\xa6.\nI.\n\xe2\x80\xa6Plaintiffs, Lois and Harvey Jacques, are an elderly couple, now retired from farming, who own\nroughly 170 acres near Wilke\xe2\x80\x99s Lake in the town of Schleswig. The defendant, Steenberg Homes, Inc.\n(Steenberg), is in the business of selling mobile homes. In the fall of 1993, a neighbor of the Jacques\npurchased a mobile home from Steenberg\xe2\x80\xa6. Steenberg preferred transporting the home across the\nJacques\xe2\x80\x99 land because the only alternative was a private road which was covered in up to seven feet\nof snow and contained a sharp curve which would require sets of \xe2\x80\x9crollers\xe2\x80\x9d to be used when\nmaneuvering the home around the curve. Steenberg asked the Jacques on several separate occasions\nwhether it could move the home across the Jacques\xe2\x80\x99 farm field. The Jacques refused. The Jacques\nwere sensitive about allowing others on their land because they had lost property valued at over\n$10,000 to other neighbors in an adverse possession action in the mid-1980\xe2\x80\x99s. Despite repeated\nrefusals from the Jacques, Steenberg decided to sell the mobile home\xe2\x80\xa6and delivered it on February\n15, 1994.\nOn the morning of delivery, Mr. Jacque observed the mobile home parked on the corner of\nthe town road adjacent to his property\xe2\x80\xa6. The movers, who were Steenberg employees, showed Mr.\nJacque the path they planned to take with the mobile home to reach the neighbor\xe2\x80\x99s lot. The path cut\nacross the Jacques\xe2\x80\x99 land. Mr. Jacque informed the movers that it was the Jacques\xe2\x80\x99 land they were\nplanning to cross and that Steenberg did not have permission to cross their land\xe2\x80\xa6. One of\nSteenberg\xe2\x80\x99s employees called the assistant manager, who then came out to the Jacques\xe2\x80\x99 home. In the\nmeantime, the Jacques called and asked some of their neighbors and the town chairman to come\nover immediately. Once everyone was present, the Jacques showed the assistant manager an aerial\nmap and plat book of the township to prove their ownership of the land, and reiterated their demand\nthat the home not be moved across their land.\nAt that point, the assistant manager asked Mr. Jacque how much money it would take to get\npermission. Mr. Jacque responded that it was not a question of money; the Jacques just did not want\nSteenberg to cross their land. Mr. Jacque testified that he told Steenberg to \xe2\x80\x9c[F]ollow the road, that\nis what the road is for.\xe2\x80\x9d\xe2\x80\xa6 [U]pon coming out of the Jacques\xe2\x80\x99 home, the assistant manager stated: \xe2\x80\x9cI\ndon\xe2\x80\x99t give a \xe2\x80\x94\xe2\x80\x94 what [Mr. Jacque] said, just get the home in there any way you can.\xe2\x80\x9d\xe2\x80\xa6 The\nemployees, after beginning down the private road, ultimately used a \xe2\x80\x9cbobcat\xe2\x80\x9d to cut a path through\nthe Jacques\xe2\x80\x99 snow-covered field and hauled the home across the Jacques\xe2\x80\x99 land to the neighbor\xe2\x80\x99s lot.\nOne employee testified that upon returning to the office and informing the assistant manager that\nthey had gone across the field, the assistant manager reacted by giggling and laughing\xe2\x80\xa6. When a\n\xc3\xa3\n\nGoogle Earth (aerial view of Wilke\xe2\x80\x99s Lake with the Jacques\xe2\x80\x99 private road marked in yellow).\n\n\x0c50\n\nTORT LAW\n\nneighbor informed the Jacques that Steenberg had, in fact, moved the mobile home across the\nJacques\xe2\x80\x99 land, Mr. Jacque called the Manitowoc County Sheriff\xe2\x80\x99s Department\xe2\x80\xa6[and] an officer from\nthe sheriff\xe2\x80\x99s department issued a $30 citation to Steenberg\xe2\x80\x99s assistant manager.\nThe Jacques commenced an intentional tort action\xe2\x80\xa6. The jury awarded the Jacques $1 nominal\ndamages and $100,000 punitive damages\xe2\x80\xa6.\nII.\n\xe2\x80\xa6Steenberg argues that, as a matter of law, punitive damages could not be awarded by the jury\nbecause punitive damages must be supported by an award of compensatory damages and here the\njury awarded only nominal and punitive damages. The Jacques contend that the rationale\nsupporting the compensatory damage award requirement is inapposite when the wrongful act is an\nintentional trespass to land. We agree with the Jacques\xe2\x80\xa6.\nThe general rule was stated in Barnard v. Cohen, 162 N.W.2d 480 (Wis. 1917), where the\nquestion presented was: \xe2\x80\x9cIn an action for libel, can there be a recovery of punitory damages if only\nnominal compensatory damages are found?\xe2\x80\x9d With the bare assertion that authority and better\nreason supported its conclusion, the Barnard court said no. Barnard continues to state the general\nrule of punitive damages in Wisconsin. The rationale for the compensatory damage requirement is\nthat if the individual cannot show actual harm, he or she has but a nominal interest, hence, society\nhas little interest in having the unlawful, but otherwise harmless, conduct deterred, therefore,\npunitive damages are inappropriate.\nHowever, whether nominal damages can support a punitive damage award in the case of an\nintentional trespass to land has never been squarely addressed by this court\xe2\x80\xa6. In 1854 the court\nestablished punitive damages, allowing the assessment of \xe2\x80\x9cdamages as a punishment to the\ndefendant for the purpose of making an example.\xe2\x80\x9d McWilliams v. Bragg, 3 Wis. 377 (1854).\nThe McWilliams court related the facts and an illustrative tale from the English case of Merest v.\nHarvey, 128 Eng. Rep. 761 (C.P. 1814), to explain the rationale underlying punitive damages.\nIn Merest, a landowner was shooting birds in his field when he was approached by the local\nmagistrate who wanted to hunt with him. Although the landowner refused, the magistrate\nproceeded to hunt. When the landowner continued to object, the magistrate threatened to have him\njailed and dared him to file suit. Although little actual harm had been caused, the English court\nupheld damages of 500 pounds, explaining \xe2\x80\x9cin a case where a man disregards every principle which\nactuates the conduct of gentlemen, what is to restrain him except large damages?\xe2\x80\x9d\nTo explain the need for punitive damages, even where actual harm is slight, McWilliams related\nthe hypothetical tale from Merest of an intentional trespasser:\nSuppose a gentleman has a paved walk in his paddock, before his window, and\nthat a man intrudes and walks up and down before the window of his house, and\nlooks in while the owner is at dinner, is the trespasser permitted to say \xe2\x80\x9chere is a\nhalfpenny for you which is the full extent of the mischief I have done.\xe2\x80\x9d Would that\nbe a compensation? I cannot say that it would be.\nThus, in the case establishing punitive damages in this state, this court recognized that in certain\nsituations of trespass, the actual harm is not in the damage done to the land, which may be minimal,\nbut in the loss of the individual\xe2\x80\x99s right to exclude others from his or her property and, the court\nimplied that this right may be punished by a large damage award despite the lack of measurable\nharm\xe2\x80\xa6.\nThe Jacques argue that the rationale for not allowing nominal damages to support a punitive\ndamage award is inapposite when the wrongful act involved is an intentional trespass to land. The\nJacques argue that both the individual and society have significant interests in deterring intentional\ntrespass to land, regardless of the lack of measurable harm that results. We agree with the Jacques.\nAn examination of the individual interests invaded by an intentional trespass to land, and society\xe2\x80\x99s\ninterests in preventing intentional trespass to land, leads us to the conclusion that the Barnard rule\nshould not apply when the tort supporting the award is intentional trespass to land.\nWe turn first to the individual landowner\xe2\x80\x99s interest in protecting his or her land from trespass\xe2\x80\xa6.\n[T]he private landowner\xe2\x80\x99s right to exclude others from his or her land is one of the most essential\n\n\x0cCASES & CRITIQUE\n\n51\n\nsticks in the bundle of rights that are commonly characterized as property\xe2\x80\xa6. Yet a right is hollow if\nthe legal system provides insufficient means to protect it. Felix Cohen offers the following analysis\nsummarizing the relationship between the individual and the state regarding property rights:\n[T]hat is property to which the following\nlabel can be attached:\nTo the world:\nKeep off X unless you have my permission,\nwhich I may grant or withhold.\nSigned: Private Citizen Endorsed: The state\nFelix S. Cohen, Dialogue on Private Property, IX Rutgers Law Review 357, 374 (1954). Harvey and\nLois Jacque have the right to tell Steenberg Homes and any other trespasser, \xe2\x80\x9cNo, you cannot cross\nour land.\xe2\x80\x9d But that right has no practical meaning unless protected by the State. And, as this court\nrecognized as early as 1854, a \xe2\x80\x9chalfpenny\xe2\x80\x9d award does not constitute state protection.\nThe nature of the nominal damage award in an intentional trespass to land case further supports\nan exception to Barnard\xe2\x80\xa6. The law recognizes actual harm in every trespass to land whether or not\ncompensatory damages are awarded. Thus, in the case of intentional trespass to land, the nominal\ndamage award represents the recognition that, although immeasurable in mere dollars, actual harm\nhas occurred.\nThe potential for harm resulting from intentional trespass also supports an exception\nto Barnard. A series of intentional trespasses, as the Jacques had the misfortune to discover in an\nunrelated action, can threaten the individual\xe2\x80\x99s very ownership of the land. The conduct of an\nintentional trespasser, if repeated, might ripen into prescription or adverse possession and, as a\nconsequence, the individual landowner can lose his or her property rights to the trespasser\xe2\x80\xa6.\nSociety has an interest in punishing and deterring intentional trespassers beyond that of\nprotecting the interests of the individual landowner. Society has an interest in preserving the\nintegrity of the legal system. Private landowners should feel confident that wrongdoers who trespass\nupon their land will be appropriately punished. When landowners have confidence in the legal\nsystem, they are less likely to resort to \xe2\x80\x9cself-help\xe2\x80\x9d remedies. In McWilliams, the court recognized the\nimportance of \xe2\x80\x9cpreventing the practice of dueling, by permitting juries to punish insult by exemplary\ndamages.\xe2\x80\x9d Although dueling is rarely a modern form of self-help, one can easily imagine a frustrated\nlandowner taking the law into his or her own hands when faced with a brazen trespasser, like\nSteenberg, who refuses to heed no trespass warnings.\nPeople expect wrongdoers to be appropriately punished. Punitive damages have the effect of\nbringing to punishment types of conduct that, though oppressive and hurtful to the individual,\nalmost invariably go unpunished by the public prosecutor. The $30 forfeiture was certainly not an\nappropriate punishment for Steenberg\xe2\x80\x99s egregious trespass in the eyes of the Jacques. It was more\nakin to Merest\xe2\x80\x99s \xe2\x80\x9chalfpenny.\xe2\x80\x9d If punitive damages are not allowed in a situation like this, what\npunishment will prohibit the intentional trespass to land? Moreover, what is to stop Steenberg\nHomes from concluding, in the future, that delivering its mobile homes via an intentional trespass\nand paying the resulting Class B forfeiture, is not more profitable than obeying the law? Steenberg\nHomes plowed a path across the Jacques\xe2\x80\x99 land and dragged the mobile home across that path, in the\nface of the Jacques\xe2\x80\x99 adamant refusal. A $30 forfeiture and a $1 nominal damage award are unlikely\nto restrain Steenberg Homes from similar conduct in the future. An appropriate punitive damage\naward probably will.\nIn sum,\xe2\x80\xa6the Barnard rule sends the wrong message to Steenberg Homes and any others who\ncontemplate trespassing on the land of another. It implicitly tells them that they are free to go where\nthey please, regardless of the landowner\xe2\x80\x99s wishes\xe2\x80\xa6. We conclude that both the private landowner\nand society have much more than a nominal interest in excluding others from private land.\nIntentional trespass to land causes actual harm to the individual, regardless of whether that harm\ncan be measured in mere dollars\xe2\x80\xa6.\n\n\x0c52\n\nTORT LAW\n\n1.\n\nQUESTIONS\nWhat\xe2\x80\x99s Tort Law Up To? How does the Jacque decision serve the goals of tort law?\n\n2.\n\nTrivial Pursuits: In the famous Case of the Thorns (1466), a man sued his neighbor for\ntrespass after the neighbor\xe2\x80\x99s hedge-trimming left thorns on the man\xe2\x80\x99s land. Who do\nthink prevailed? Who do you think should prevail?\n\n3.\n\n21st Century Trespass: If Steenberg flew a drone over the Jacques\xe2\x80\x99 land, should they still\nbe liable for trespass?\nBURNS PHILP FOOD, INC v. CAVALEA CONTINENTAL FREIGHT, INC.\nUnited States Court of Appeals for the Seventh Circuit (1998)\n\nEasterbrook, Judge:\n\n\xc3\xa3\n\nNabisco broke up a tract of industrial real estate in Chicago. Cavalea\nContinental Freight bought several parcels and Burns Philp Food the\nremainder. In 1986 real estate records were changed to reflect these\ntransactions, but something went awry\xe2\x80\xa6. [As a result, Burns Philp\nmistakenly paid almost $125,000 in property taxes on land owned by\nCavalea. It notified Cavalea of the mistake in 1993.] Instead of resolving\nmatters amicably, these neighbors have acted like the Hatfields and\nMcCoys. Cavalea refused to pay a dime, leading Burns Philp to sue [in\nrestitution to obtain reimbursement for the tax payments]. Cavalea filed a\ncounterclaim accusing Burns Philp of building a fence that encroached\nonto its parcel\xe2\x80\xa6. The district judge\xe2\x80\xa6entered a judgment from which,\npredictably, both sides have appealed.\n[Under the applicable statute of limitations, Burns Philp cannot recover for taxes unwittingly\npaid on behalf of Cavalea for the five years immediately prior to the filing of the suit.]\xe2\x80\xa6\nNow for Cavalea\xe2\x80\x99s counterclaim. Burns Philp constructed a fence on what it thought was the\nborder between its property and Cavalea\xe2\x80\x99s. Whoever surveyed the land to fix the border for the fence\ndid a lousy job. The border is 205 feet long. One end of the fence was located several feet inside\nBurns Philp\xe2\x80\x99s lot and the other was 20 feet into Cavalea\xe2\x80\x99s. Burns Philp thus occupied about 2,000\nsquare feet of land that belonged to Cavalea. After Ameritech conducted a survey in 1995, Cavalea\nlearned that some of its land was on the other side of the fence. It did not notify Burns Philp of the\nproblem until November 1995, when it filed the counterclaim seeking damages for trespass and an\ninjunction requiring Burns Philp to remove the fence. Burns Philp responded by denying liability;\nit did not verify the accuracy of Cavalea\xe2\x80\x99s survey or move the fence back to the property line. In\nDecember 1996 Cavalea ripped out the fence and appurtenances without Burns Philp\xe2\x80\x99s leave and\nplaced a large container right at the property line, interfering with the use of Burns Philp\xe2\x80\x99s loading\ndock. Burns Philp now concedes that Cavalea was entitled to do these things. But the district judge\nheld that Cavalea is not entitled to damages, because it did not notify Burns Philp that the fence had\nbeen erected on its land. Trespass is a strict liability tort, and an obligation to notify the intruder is\ninconsistent with the idea of strict liability. Nonetheless, the district judge stated: \xe2\x80\x9cThat [notice\nrequirement] may be difficult to rationalize in terms of the traditional law of trespass, but it\xe2\x80\x99s not\ndifficult for me to rationalize in terms of elemental justice, and that\xe2\x80\x99s the way I come out.\xe2\x80\x9d\nIn diversity litigation, however, state law prevails over notions of \xe2\x80\x9celemental justice.\xe2\x80\x9d The only\nquestion for decision is whether Illinois conditions damages on the landowner\xe2\x80\x99s notice to the\ntrespasser. (Cavalea contends that the counterclaim filed in 1995 gave whatever notice state law\nrequires, a possibility the district judge did not discuss, but we need not pursue that prospect.)\nBurns Philp locates a notice-to-trespassers requirement in cases holding that a landowner who\nhas consented to entry may not complain about trespass until the consent has been revoked. The\nproposition is unremarkable. Trespass is entry without consent; while the consent lasts there can be\nno trespass, and therefore no legal remedy. How can this assist Burns Philp? Cavalea did not consent\n\xc3\xa3\n\nThomas Hawk, No Trespassing Chief (CC BY-NC 2.0) (original street art by Banksy).\n\n\x0cCASES & CRITIQUE\n\n53\n\nto the construction of a fence on its land. Had it done so, a change of mind would not necessarily\nrequire demolition of the fence\xe2\x80\x94the original consent may grant a license that can be revoked only\nwith compensation. But Burns Philp did not seek anyone\xe2\x80\x99s consent to build the fence. It thought\nthat the fence was on its land, and no one knew otherwise until 1995. Knowledge of a fence\xe2\x80\x99s\nexistence is not equivalent to consent\xe2\x80\x94not, at least, when the landowner does not suspect that the\nborder has been crossed. Paths that cut diagonals across parcels with known borders and similarly\nobvious intrusions, where failure to protest might imply consent, pose different\nquestions\xe2\x80\xa6. Cavalea accordingly is entitled to damages\xe2\x80\x94if it suffered monetary loss.\nCavalea offered evidence that it used the land along its border with Burns Philp to store trailers\nand freight containers, and that it could have stored 102 additional trailers or containers had the\nfence been located correctly. It charges shippers and truckers $25 per day to store loaded containers,\n75\xc2\xa2 a day for empty truck trailers, and 55\xc2\xa2 a day for empty containers. Proposing that all 102 places\nwould have been used all of the time, Cavalea demanded nearly $1 million in damages, which would\nmake this the most valuable twentieth of an acre in Chicago. Burns Philp responds that its employees\nconsistently noticed empty places at Cavalea\xe2\x80\x99s facility even before the fence was removed, and it\nargues that access to the extra land accordingly would not have added to Cavalea\xe2\x80\x99s receipts. Because\nit concluded that Cavalea could not maintain an action for trespass, the district judge did not resolve\nthis dispute. It is not our place to play factfinder, but we hope that it will prove possible for the new\ndistrict judge to wrap things up after reviewing the existing record without taking additional\nevidence\xe2\x80\xa6. The judgment is vacated and the case remanded\xe2\x80\xa6to calculate and award the damages\n(if any) that Cavalea sustained from the trespass.\n1.\n\nQUESTIONS\nNosy Neighbors: Cavalea knew that the fence was there and didn\xe2\x80\x99t do anything about it\nfor years. Why isn\xe2\x80\x99t that enough to show that the company implicitly consented to the\ntrespass on its land?\n\n2.\n\nElemental Justice: Did Burns Philp Food do anything wrong by building the fence? Is\nthe court\xe2\x80\x99s decision fair to the company? Would your answer change if, on remand,\nCavalea got the $1 million in damages that it sought?\n\n3.\n\nIntentional Acts: What type of intent is required to commit a trespass? Do you need to\nintend harm or to know that you\xe2\x80\x99re trespassing? What if you\xe2\x80\x99re in a car accident that\nsends you flying into your neighbor\xe2\x80\x99s front yard? What if kidnappers hold you hostage\nin a stranger\xe2\x80\x99s abandoned barn? What if you tie your boat to a dock in order to keep safe\nduring a sudden storm?\nF\xc3\x9aTBOL IS LIFE PROBLEM\n\nRoy and Jamie have been next-door neighbors for several years. Until recently, they were great\nfriends who regularly showed up at each other\xe2\x80\x99s houses unannounced, borrowed tools from each\nother\xe2\x80\x99s sheds without asking, and even mowed the other\xe2\x80\x99s lawn whenever they did their own.\nEverything changed when Roy\xe2\x80\x99s beloved AFC Richmond played in the cup final against Jamie\xe2\x80\x99s pick,\nManchester City. Before kick-off, both men had several beers and agreed to a $500 bet on the game.\nWith Manchester City victorious at the final whistle, Jamie demanded his winnings. An irate Roy\nbegan screaming that it wouldn\xe2\x80\x99t be fair to make him pay because of the referee\xe2\x80\x99s appalling decision\nto send off Ted, Richmond\xe2\x80\x99s talismanic coach. Jamie and Roy argued until Roy finally stormed out.\nA few days later, Roy left for a romantic weekend with his girlfriend Keeley. While Roy was gone,\nJamie hosted a party. To accommodate his guests, Jamie stored some of his things in Roy\xe2\x80\x99s shed.\nRoy got an app alert to his phone from his home-security camera and watched Jamie enter through\nthe back gate and deposit his things in the shed. The things were gone by the time Roy and Keeley\nreturned. Still seething over their fight, Roy decides to sue Jamie for trespass.\n(a) Can Roy satisfy the elements of trespass? Does it matter that Roy wasn\xe2\x80\x99t home or using\nhis shed that weekend? Does it matter that Jamie\xe2\x80\x99s presence left no trace on Roy\xe2\x80\x99s land?\n\n\x0c54\n\nTORT LAW\n\n(b) If Roy can satisfy the elements of trespass, what relief could he seek?\n(c) Does it matter that Roy and Jamie seem to have had an unspoken agreement about\nentering each other\xe2\x80\x99s land? Would it make any difference if, during the week before their\nfight, Roy had given Jamie a key to his house and told him, \xe2\x80\x9cFeel free to use the house,\nshed, garage, yard\xe2\x80\x94whatever you need while I\xe2\x80\x99m off with Keeley\xe2\x80\x9d?\n\nB. Conversion\nTHYROFF v. NATIONWIDE MUTUAL INSURANCE CO.\nNew York Court of Appeals (2007)\nGraffeo, Judge:\n\n\xc3\xa3\n\nThe United States Court of Appeals for the Second Circuit has\ncertified a question to us that asks whether the common-law cause of\naction of conversion applies to certain electronic computer records\nand data\xe2\x80\xa6.\nI\nPlaintiff Louis Thyroff was an insurance agent for defendant\nNationwide Mutual Insurance Company. In 1988, the parties had\nentered into an Agent\xe2\x80\x99s Agreement that specified the terms of their\nbusiness relationship. As part of the arrangement, Nationwide agreed\nto lease Thyroff computer hardware and software, referred to as the agency office-automation\n(AOA) system, to facilitate the collection and transfer of customer information to Nationwide. In\naddition to the entry of business data, Thyroff also used the AOA system for personal e-mails,\ncorrespondence and other data storage that pertained to his customers. On a daily basis, Nationwide\nwould automatically upload all of the information from Thyroff\xe2\x80\x99s AOA system, including Thryoff\xe2\x80\x99s\npersonal data, to its centralized computers.\nThe Agent\xe2\x80\x99s Agreement was terminable at will and, in September 2000, Thyroff received a letter\nfrom Nationwide informing him that his contract as an exclusive agent had been cancelled. The next\nday, Nationwide repossessed its AOA system and denied Thyroff further access to the computers\nand all electronic records and data. Consequently, Thyroff was unable to retrieve his customer\ninformation and other personal information that was stored on the computers.\nThyroff initiated an action against Nationwide in the United States District Court for the\nWestern District of New York, asserting several causes of action, including a claim for the\nconversion of his business and personal information stored on the computer hard drives. In\nresponse to Nationwide\xe2\x80\x99s motion to dismiss, District Court held that the complaint failed to state a\ncause of action for conversion\xe2\x80\xa6. In his appeal to the United States Court of Appeals for the Second\nCircuit, Thyroff sought reinstatement of his conversion cause of action, along with other relief.\nNationwide countered that a conversion claim cannot be based on the misappropriation of\nelectronic records and data because New York does not recognize a cause of action for the\nconversion of intangible property. The Second Circuit determined that the issue was unresolved in\nNew York and therefore certified the following question of law to this Court: is a claim for the\nconversion of electronic data cognizable under New York law?\nII\nThe hand of history lies heavy upon the tort of conversion. The \xe2\x80\x9cancient doctrine\xe2\x80\x9d has gone\nthrough a great deal of evolution over time, dating back to the Norman Conquest of England in\n1066\xe2\x80\xa6. By 1252, a new cause of action\xe2\x80\x94trespass de bonis asportatis [a Latin phrase meaning\n\xe2\x80\x9ctrespass for carrying goods away\xe2\x80\x9d]\xe2\x80\x94was introduced. It allowed a plaintiff to obtain pecuniary\ndamages for certain misappropriations of property and, following a favorable jury verdict, the sale\nof the defendant\xe2\x80\x99s property to pay a plaintiff the value of the stolen goods. If, however, the defendant\noffered to return the property to its rightful owner, the owner had to accept it and recovery was\n\xc3\xa3\n\nMichael Molenda, Internet Bank Robbery (CC BY-NC-ND 2.0).\n\n\x0cCASES & CRITIQUE\n\n55\n\nlimited to the damages he had sustained through his loss of possession, or through harm to the\nchattel, which were usually considerably less than its value.\nIn the late 15th century, the common law was extended to fill the gap left by the action of trespass\nby providing a more comprehensive remedy in cases where a defendant\xe2\x80\x99s interference with property\nrights was so serious that it went beyond mere trespass to a conversion of the property. Known as\n\xe2\x80\x9ctrover,\xe2\x80\x9d this cause of action was aimed at a person who had found goods and refused to return them\nto the title owner, and was premised on the theory that the defendant, by \xe2\x80\x9cconverting\xe2\x80\x9d the chattel to\nhis own use, had appropriated the plaintiff\xe2\x80\x99s rights, for which he was required to make\ncompensation. The plaintiff was therefore not required to accept the chattel when it was tendered\nback to him; and he recovered as his damages the full value of the chattel at the time and place of the\nconversion. The effect was that the defendant was compelled, because of his wrongful appropriation,\nto buy the chattel at a forced sale, of which the action of trover was the judicial instrument\xe2\x80\xa6.\nTrover gave way slowly to the tort of conversion, which was created to address some\ninterferences with chattels for which the action of trover would not lie, such as a claim dealing with\na right of future possession. The technical differences between trover and conversion eventually\ndisappeared. The Restatement (Second) of Torts now defines conversion as an intentional act of\n\xe2\x80\x9cdominion or control over a chattel which so seriously interferes with the right of another to control\nit that the actor may justly be required to pay the other the full value of the chattel.\xe2\x80\x9d\nIII\nAs history reveals, the common law has evolved to broaden the remedies available for the\nmisappropriation of personal property. [With changes in society,] the courts became willing to\nconsider new species of personal property eligible for conversion actions.\nConversion and its common-law antecedents were directed against interferences with or\nmisappropriation of \xe2\x80\x9cgoods\xe2\x80\x9d that were tangible, personal property. This was consistent with the\noriginal notions associated with the appeals of robbery and larceny, trespass and trover because\ntangible property could be lost or stolen. By contrast, real property and all manner of intangible\nrights could not be \xe2\x80\x9clost or found\xe2\x80\x9d in the eyes of the law and were not therefore subject to an action\nfor trover or conversion.\nUnder this traditional construct, conversion was viewed as the unauthorized assumption and\nexercise of the right of ownership over goods belonging to another to the exclusion of the owner\xe2\x80\x99s\nrights. Thus, the general rule was that an action for conversion will not normally lie, when it involves\nintangible property because there is no physical item that can be misappropriated.\nDespite this long-standing reluctance to expand conversion beyond the realm of tangible\nproperty, some courts determined that there was no good reason for keeping up a distinction that\narose wholly from that original peculiarity of the action of trover (that an item had to be capable of\nbeing lost and found) and substituted a theory of conversion that covered things represented by\nvaluable papers, such as certificates of stock, promissory notes, and other papers of value. This, in\nturn, led to the recognition that an intangible property right can be united with a tangible object for\nconversion purposes. In Agar v. Orda, 264 N.Y. 248, 251 (1934), which involved the conversion of\nintangible shares of stock, this Court applied the so-called \xe2\x80\x9cmerger\xe2\x80\x9d doctrine because:\nfor practical purposes [the shares] are merged in stock certificates which are\ninstrumentalities of trade and commerce. Such certificates are treated by business\nmen as property for all practical purposes. Indeed, this court has held that the shares\nof stock are so completely merged in the certificate that conversion of the certificate\nmay be treated as a conversion of the shares of stock represented by the certificate.\nMore recently, we concluded that a plaintiff could maintain a cause of action for conversion where\nthe defendant infringed on the plaintiff\xe2\x80\x99s intangible property right to a musical performance by\nmisappropriating a master recording\xe2\x80\x94a tangible item of property capable of being physically taken.\nIV\nWe have not previously had occasion to consider whether the common law should permit\nconversion for intangible property interests that do not strictly satisfy the merger test. Although\n\n\x0c56\n\nTORT LAW\n\nsome courts have adhered to the traditional rules of conversion, others have taken a more flexible\nview of conversion and held that the cause of action can embrace intangible property.\nA variety of arguments have been made in support of expanding the scope of conversion. Some\ncourts have decided that a theft of intangible property is a violation of the criminal law and should\nbe civilly remediable\xe2\x80\xa6. On the other hand, the primary argument for retaining the traditional\nboundaries of the tort is that it seems preferable to fashion other remedies, such as unfair\ncompetition, to protect people from having intangible values used and appropriated in unfair ways.\nNonetheless, advocates of this view readily concede that there is perhaps no very valid and essential\nreason why there might not be conversion of intangible property and that there is very little practical\nimportance whether the tort is called conversion, or a similar tort with another name because in\neither case the recovery is for the full value of the intangible right so appropriated\xe2\x80\xa6.\nV\nIt is the strength of the common law to respond, albeit cautiously and intelligently, to the\ndemands of commonsense justice in an evolving society. That time has arrived. The reasons for\ncreating the merger doctrine and departing from the strict common-law limitation of conversion\ninform our analysis. The expansion of conversion to encompass a different class of property, such\nas shares of stock, was motivated by society\xe2\x80\x99s growing dependence on intangibles. It cannot be\nseriously disputed that society\xe2\x80\x99s reliance on computers and electronic data is substantial, if not\nessential. Computers and digital information are ubiquitous and pervade all aspects of business,\nfinancial and personal communication activities. Indeed, this opinion was drafted in electronic\nform, stored in a computer\xe2\x80\x99s memory and disseminated to the Judges of this Court via e-mail. We\ncannot conceive of any reason in law or logic why this process of virtual creation should be treated\nany differently from production by pen on paper or quill on parchment. A document stored on a\ncomputer hard drive has the same value as a paper document kept in a file cabinet.\nThe merger rule reflected the concept that intangible property interests could be converted only\nby exercising dominion over the paper document that represented that interest. Now, however, it is\ncustomary that stock ownership exclusively exists in electronic format. Because shares of stock can\nbe transferred by mere computer entries, a thief can use a computer to access a person\xe2\x80\x99s financial\naccounts and transfer the shares to an account controlled by the thief. Similarly, electronic documents\nand records stored on a computer can also be converted by simply pressing the delete button.\nFurthermore, it generally is not the physical nature of a document that determines its worth, it is\nthe information memorialized in the document that has intrinsic value. A manuscript of a novel has\nthe same value whether it is saved in a computer\xe2\x80\x99s memory or printed on paper. So too, the information\nthat Thyroff allegedly stored on his leased computers in the form of electronic records of customer\ncontacts and related data has value to him regardless of whether the format in which the information\nwas stored was tangible or intangible. In the absence of a significant difference in the value of the\ninformation, the protections of the law should apply equally to both forms\xe2\x80\x94physical and virtual.\nIn light of these considerations, we believe that the tort of conversion must keep pace with the\ncontemporary realities of widespread computer use. We therefore answer the certified question in\nthe affirmative and hold that the type of data that Nationwide allegedly took possession of\xe2\x80\x94\nelectronic records that were stored on a computer and were indistinguishable from printed\ndocuments\xe2\x80\x94is subject to a claim of conversion in New York. Because this is the only type of\nintangible property at issue in this case, we do not consider whether any of the myriad other forms\nof virtual information should be protected by the tort\xe2\x80\xa6.\n1.\n2.\n\nQUESTIONS\nPhone a Friend: Why would a federal appeals court certify a legal question to a state\nsupreme court? Why do you think the Second Circuit certified this question?\nBlameless Conversions: Is it possible to have a blameless conversion? Imagine that you\nmake a reasonable mistake that damages someone else\xe2\x80\x99s property\xe2\x80\x94you shoot a pet dog\nbecause you genuinely think it\xe2\x80\x99s a wolf, or you steal a bike that you believe is yours but\nis actually your neighbor\xe2\x80\x99s. Should the owner be able to recover damages?\n\n\x0cCASES & CRITIQUE\n\n3.\n\n57\n\nHarmless Conversions: Is it possible to have a harmless conversion? We\xe2\x80\x99ve seen\ndefendants be liable for trespass to land despite causing no damage to the plaintiff\xe2\x80\x99s\nproperty. Should similar liability attach for torts protecting legal interests in possessions?\nOr should the plaintiff have to show actual injury when bringing a conversion claim?\n\nC. Trespass to Chattels\nINTEL CORP. v. HAMIDI\nSupreme Court of California (2003)\nWerdegar, Justice:\n\n\xc3\xa3\n\n\xe2\x80\xa6[Kourosh Kenneth] Hamidi, a former Intel\nengineer, together with others, formed an organization\nnamed Former and Current Employees of Intel (FACEIntel) to disseminate information and views critical of\nIntel\xe2\x80\x99s employment and personnel policies and practices.\nFACE-Intel maintained a Web site\xe2\x80\xa6containing such\nmaterial. 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\nemployees of the dangers those practices posed to their careers, suggested employees consider\nmoving to other companies, solicited employees\xe2\x80\x99 participation in FACE-Intel, and urged employees\nto inform themselves further by visiting FACE-Intel\xe2\x80\x99s Web site. The messages stated that recipients\ncould, by notifying the sender of their wishes, be removed from FACE-Intel\xe2\x80\x99s mailing list; Hamidi\ndid not subsequently send messages to anyone who requested removal.\nEach message was sent to thousands of addresses (as many as 35,000 according to FACE-Intel\xe2\x80\x99s\nWeb site), though some messages were blocked by Intel before reaching employees. Intel\xe2\x80\x99s attempt\nto block internal transmission of the messages succeeded only in part; Hamidi later admitted he\nevaded blocking efforts by using different sending computers. When Intel, in March 1998,\ndemanded in writing that Hamidi and FACE-Intel stop sending e-mails to Intel\xe2\x80\x99s computer system,\nHamidi asserted the organization had a right to communicate with willing Intel employees; he sent\na new mass mailing in September 1998.\nThe summary judgment record contains no evidence Hamidi breached Intel\xe2\x80\x99s computer security\nin order to obtain the recipient addresses for his messages; indeed, internal Intel memoranda show\nthe company\xe2\x80\x99s management concluded no security breach had occurred. Hamidi stated he created\nthe recipient address list using an Intel directory on a floppy disk anonymously sent to him. Nor is\nthere any evidence that the receipt or internal distribution of Hamidi\xe2\x80\x99s electronic messages damaged\nIntel\xe2\x80\x99s computer system or slowed or impaired its functioning. Intel did present uncontradicted\nevidence, however, that many employee recipients asked a company official to stop the messages\nand that staff time was consumed in attempts to block further messages from FACE-Intel. According\nto the FACE-Intel Web site, moreover, the messages had prompted discussions between \xe2\x80\x9c[e]xcited\nand nervous managers\xe2\x80\x9d and the company\xe2\x80\x99s human resources department.\nIntel sued Hamidi and FACE-Intel [for trespass to chattels] and seeking both actual damages\nand an injunction against further e-mail messages\xe2\x80\xa6. [The trial court] granted Intel\xe2\x80\x99s motion for\nsummary judgment, permanently enjoining Hamidi, FACE-Intel, and their agents \xe2\x80\x9cfrom sending\nunsolicited e-mail to addresses on Intel\xe2\x80\x99s computer systems.\xe2\x80\x9d\xe2\x80\xa6 [The Court of Appeal affirmed.]\nI. Current California Tort Law\nDubbed by Prosser the \xe2\x80\x9clittle brother of conversion,\xe2\x80\x9d the tort of trespass to chattels allows\nrecovery for interferences with possession of personal property \xe2\x80\x9cnot sufficiently important to be\n\n\xc3\xa3\n\nFreezelight, Spam Wall (CC BY-SA 2.0).\n\n\x0c58\n\nTORT LAW\n\nclassed as conversion, and so to compel the defendant to pay the full value of the thing with which\nhe has interfered.\xe2\x80\x9d Prosser & Keeton, Torts \xc2\xa7 14 (1984).\nThough not amounting to conversion, the defendant\xe2\x80\x99s interference must, to be actionable, have\ncaused some injury to the chattel or to the plaintiffs rights in it\xe2\x80\xa6. In cases of interference with\npossession of personal property not amounting to conversion, the owner has a cause of action for\ntrespass or case, and may recover only the actual damages suffered by reason of the impairment of the\nproperty or the loss of its use. In modern American law generally, trespass remains as an occasional\nremedy for minor interferences, resulting in some damage, but not sufficiently serious or sufficiently\nimportant to amount to the greater tort of conversion.\nThe Restatement, too, makes clear that some actual injury must have occurred in order for a\ntrespass to chattels to be actionable. Under section 218 of the Restatement Second of Torts,\ndispossession alone, without further damages, is actionable, but other forms of interference require\nsome additional harm to the personal property or the possessor\xe2\x80\x99s interests in it[:]\nThe interest of a possessor of a chattel in its inviolability, unlike the similar interest\nof a possessor of land, is not given legal protection by an action for nominal\ndamages for harmless intermeddlings with the chattel. In order that an actor who\ninterferes with another\xe2\x80\x99s chattel may be liable, his conduct must affect some other\nand more important interest of the possessor. Therefore, one who intentionally\nintermeddles with another\xe2\x80\x99s chattel is subject to liability only if his intermeddling is\nharmful to the possessor\xe2\x80\x99s materially valuable interest in the physical condition,\nquality, or value of the chattel, or if the possessor is deprived of the use of the chattel\nfor a substantial time, or some other legally protected interest of the possessor is\naffected as stated in Clause (c). Sufficient legal protection of the possessor\xe2\x80\x99s interest\nin the mere inviolability of his chattel is afforded by his privilege to use reasonable\nforce to protect his possession against even harmless interference\xe2\x80\xa6.\nIntel suggests that the requirement of actual harm does not apply here because it sought only\ninjunctive relief, as protection from future injuries. But\xe2\x80\xa6the fact the relief sought is injunctive does\nnot excuse a showing of injury, whether actual or threatened. Indeed, in order to obtain injunctive\nrelief the plaintiff must ordinarily show that the defendant\xe2\x80\x99s wrongful acts threaten to\ncause irreparable injuries, ones that cannot be adequately compensated in damages\xe2\x80\xa6.\nThe dispositive issue in this case, therefore, is whether the undisputed facts demonstrate\nHamidi\xe2\x80\x99s actions caused or threatened to cause damage to Intel\xe2\x80\x99s computer system, or injury to its\nrights in that personal property, such as to entitle Intel to judgment as a matter of law. To review,\nthe undisputed evidence revealed no actual or threatened damage to Intel\xe2\x80\x99s computer hardware or\nsoftware and no interference with its ordinary and intended operation. Intel was not dispossessed\nof its computers, nor did Hamidi\xe2\x80\x99s messages prevent Intel from using its computers for any\nmeasurable length of time. Intel presented no evidence its system was slowed or otherwise impaired\nby the burden of delivering Hamidi\xe2\x80\x99s electronic messages. Nor was there any evidence transmission\nof the messages imposed any marginal cost on the operation of Intel\xe2\x80\x99s computers. In sum, no\nevidence suggested that in sending messages through Intel\xe2\x80\x99s Internet connections and internal\ncomputer system Hamidi used the system in any manner in which it was not intended to function\nor impaired the system in any way. Nor does the evidence show the request of any employee to be\nremoved from FACE-Intel\xe2\x80\x99s mailing list was not honored. The evidence did show, however, that\nsome employees who found the messages unwelcome asked management to stop them and that Intel\ntechnical staff spent time and effort attempting to block the messages. A statement on the FACEIntel Web site, moreover, could be taken as an admission that the messages had caused \xe2\x80\x9c[e]xcited\nand nervous managers\xe2\x80\x9d to discuss the matter with Intel\xe2\x80\x99s human resources department.\nRelying on a line of decisions, most from federal district courts, applying the tort of trespass to\nchattels to various types of unwanted electronic contact between computers, Intel contends that,\nwhile its computers were not damaged by receiving Hamidi\xe2\x80\x99s messages, its interest in the physical\ncondition, quality or value of the computers was harmed. We disagree. The cited line of decisions\ndoes not persuade us that the mere sending of electronic communications that assertedly cause\ninjury only because of their contents constitutes an actionable trespass to a computer system\n\n\x0cCASES & CRITIQUE\n\n59\n\nthrough which the messages are transmitted. Rather, the decisions finding electronic contact to be\na trespass to computer systems have generally involved some actual or threatened interference with\nthe computers\xe2\x80\x99 functioning.\nIn Thrifty-Tel, Inc. v. Bezenek, 54 Cal. Rptr. 2d 468 (Cal. Ct. App. 1996), the California Court of\nAppeal held that evidence of automated searching of a telephone carrier\xe2\x80\x99s system for authorization\ncodes supported a cause of action for trespass to chattels. The defendant\xe2\x80\x99s automated dialing\nprogram overburdened the plaintiff\xe2\x80\x99s system, denying some subscribers access to phone lines,\nshowing the requisite injury. [Following Thrifty-Tel, a series of federal district court decisions held\nthat sending spam through an Internet service provider\xe2\x80\x99s (ISP) equipment may constitute trespass\nto the ISP\xe2\x80\x99s computer system.]\nIn each of these spamming cases, the plaintiff showed, or was prepared to show, some\ninterference with the efficient functioning of its computer system. In CompuServe, the plaintiff ISP\xe2\x80\x99s\nmail equipment monitor stated that mass [spam] mailings, especially from nonexistent addresses\nsuch as those used by the defendant, placed \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 resources unavailable to serve\nsubscribers. Similarly, in Hotmail Corp. v. Van$ Money Pie, Inc., the court found the evidence\nsupported a finding that the defendant\xe2\x80\x99s mailings \xe2\x80\x9cfill[ed] up Hotmail\xe2\x80\x99s computer storage space and\nthreatened to damage Hotmail\xe2\x80\x99s ability to service its legitimate customers.\xe2\x80\x9d\xe2\x80\xa6\nBuilding on the spamming cases, in particular CompuServe, three even more recent district court\ndecisions addressed whether unauthorized robotic data collection from a company\xe2\x80\x99s publicly\naccessible Web site is a trespass on the company\xe2\x80\x99s computer system\xe2\x80\xa6. In the leading case, eBay, Inc.\nv. Bidder\xe2\x80\x99s Edge, the defendant Bidder\xe2\x80\x99s Edge (BE), operating an auction aggregation site, accessed\nthe eBay Web site about 100,000 times per day, accounting for between 1 and 2 percent of the\ninformation requests received by eBay and a slightly smaller percentage of the data transferred by\neBay. The district court rejected eBay\xe2\x80\x99s claim that it was entitled to injunctive relief because of the\ndefendant\xe2\x80\x99s unauthorized presence alone, or because of the incremental cost the defendant had\nimposed on operation of the eBay site, but found sufficient proof of threatened harm in the potential\nfor others to imitate the defendant\xe2\x80\x99s activity: \xe2\x80\x9cIf BE\xe2\x80\x99s activity is allowed to continue unchecked, it\nwould encourage other auction aggregators to engage in similar recursive searching of the eBay\nsystem such that eBay would suffer irreparable harm from reduced system performance, system\nunavailability, or data losses.\xe2\x80\x9d Again, in addressing the likelihood of eBay\xe2\x80\x99s success on its trespass to\nchattels cause of action, the court held the evidence of injury to eBay\xe2\x80\x99s computer system sufficient\nto support a preliminary injunction: \xe2\x80\x9cIf the court were to hold otherwise, it would likely encourage\nother auction aggregators to crawl the eBay site, potentially to the point of denying effective access\nto eBay\xe2\x80\x99s customers. If preliminary injunctive relief were denied, and other aggregators began to\ncrawl the eBay site, there appears to be little doubt that the load on eBay\xe2\x80\x99s computer system would\nqualify as a substantial impairment of condition or value.\xe2\x80\x9d\xe2\x80\xa6\nIn the decisions so far reviewed, the defendant\xe2\x80\x99s use of the plaintiffs computer system was held\nsufficient to support an action for trespass when it actually did, or threatened to, interfere with the\nintended functioning of the system, as by significantly reducing its available memory and processing\npower\xe2\x80\xa6. Intel does not claim the type of functional impact that spammers and robots have been\nalleged to cause\xe2\x80\xa6. The functional burden on Intel\xe2\x80\x99s computers, or the cost in time to individual\nrecipients, of receiving Hamidi\xe2\x80\x99s occasional advocacy messages cannot be compared to the burdens\nand costs\xe2\x80\xa6[of handing] the ever-rising deluge of [spam emails like those seen in other cases].\nIntel relies on language in the eBay decision suggesting that unauthorized use of another\xe2\x80\x99s\nchattel is actionable even without any 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 capacity, BE has nonetheless deprived\neBay of the ability to use that portion of its personal property for its own purposes. The law\nrecognizes no such right to use another\xe2\x80\x99s personal property.\xe2\x80\x9d But as the eBay court went on\nimmediately to find that the defendant\xe2\x80\x99s conduct, if widely replicated, would likely impair the\nfunctioning of the plaintiffs system, we do not read the quoted remarks as expressing the court\xe2\x80\x99s\ncomplete view of the issue. In isolation, moreover, they would not be a correct statement of\nCalifornia or general American law on this point. While one may have no right temporarily to use\nanother\xe2\x80\x99s personal property, such use is actionable as a trespass only if it has proximately caused\n\n\x0c60\n\nTORT LAW\n\ninjury. In the absence of any actual damage the action will not lie. Short of dispossession, personal\ninjury, or physical damage (not present here), intermeddling is actionable only if the chattel is\nimpaired as to its condition, quality, or value, or the possessor is deprived of the use of the chattel\nfor a substantial time. In particular, an actionable deprivation of use must be for a time so substantial\nthat it is possible to estimate the loss caused thereby. A mere momentary or theoretical deprivation\nof use is not sufficient unless there is a dispossession. That Hamidi\xe2\x80\x99s messages temporarily used\nsome portion of the Intel computers\xe2\x80\x99 processors or storage is, therefore, not enough; Intel must, but\ndoes not, demonstrate some measurable loss from the use of its computer system.\nIn addition to impairment of system functionality, CompuServe and its progeny also refer to the\nISP\xe2\x80\x99s loss of business reputation and customer goodwill, resulting from the inconvenience and cost\nthat spam causes to its members, as harm to the ISP\xe2\x80\x99s legally protected interests in its personal\nproperty. Intel argues that its own interest in employee productivity, assertedly disrupted by\nHamidi\xe2\x80\x99s messages, is a comparable protected interest in its computer system\xe2\x80\xa6. This theory of\n\xe2\x80\x9cimpairment by content\xe2\x80\x9d threatens to stretch trespass law to cover injuries far afield from the harms\nto possession the tort evolved to protect. Intel\xe2\x80\x99s theory would expand the tort of trespass to chattels\nto cover virtually any unconsented-to communication that, solely because of its content, is\nunwelcome to the recipient or intermediate transmitter. As the dissenting justice [in the Court of\nAppeal] explained,\n\xe2\x80\x9cDamage\xe2\x80\x9d of this nature\xe2\x80\x94the distraction of reading or listening to an unsolicited\ncommunication\xe2\x80\x94is not within the scope of the injury against which the trespassto-chattel tort protects, and indeed trivializes it. After all, the property interest\nprotected by the old action of trespass was that of possession; and this has\ncontinued to affect the character of the action. Reading an e-mail transmitted to\nequipment designed to receive it, in and of itself, does not affect the possessory\ninterest in the equipment. Indeed, if a chattel\xe2\x80\x99s receipt of an electronic\ncommunication constitutes a trespass to that chattel, then not only are unsolicited\ntelephone calls and faxes trespasses to chattel, but unwelcome radio waves and\ntelevision signals also constitute a trespass to chattel every time the viewer\ninadvertently sees or hears the unwanted program.\nWe agree. While unwelcome communications, electronic or otherwise, can cause a variety of injuries\nto economic relations, reputation and emotions, those interests are protected by other branches of\ntort law; in order to address them, we need not create a fiction of injury to the communication system.\nNor may Intel appropriately assert a property interest in its employees\xe2\x80\x99 time. The Restatement\ntest clearly speaks in the first instance to the impairment of the chattel. But employees are not\nchattels (at least not in the legal sense of the term). Whatever interest Intel may have in preventing\nits employees from receiving disruptive communications, it is not an interest in personal property,\nand trespass to chattels is therefore not an action that will lie to protect it. Nor, finally, can the fact\nIntel staff spent time attempting to block Hamidi\xe2\x80\x99s messages be bootstrapped into an injury to Intel\xe2\x80\x99s\npossessory interest in its computers. To quote, again, from the dissenting opinion in the Court of\nAppeal: \xe2\x80\x9c[I]t is circular to premise the damage element of a tort solely upon the steps taken to\nprevent the damage. Injury can only be established by the completed tort\xe2\x80\x99s consequences, not by the\ncost of the steps taken to avoid the injury and prevent the tort; otherwise, we can create injury for\nevery supposed tort.\xe2\x80\x9d\nIntel connected its e-mail system to the Internet and permitted its employees to make use of this\nconnection both for business and, to a reasonable extent, for their own purposes. In doing so, the\ncompany necessarily contemplated the employees\xe2\x80\x99 receipt of unsolicited as well as solicited\ncommunications from other companies and individuals. That some communications would,\nbecause of their contents, be unwelcome to Intel management was virtually inevitable. Hamidi did\nnothing but use the e-mail system for its intended purpose\xe2\x80\x94to communicate with employees. The\nsystem worked as designed, delivering the messages without any physical or functional harm or\ndisruption. These occasional transmissions cannot reasonably be viewed as impairing the quality or\nvalue of Intel\xe2\x80\x99s computer system. We conclude, therefore, that Intel has not presented undisputed\n\n\x0cCASES & CRITIQUE\n\n61\n\nfacts demonstrating an injury to its personal property, or to its legal interest in that property, that\nsupport, under California tort law, an action for trespass to chattels\xe2\x80\xa6.\nKennard, Justice, concurring:\n\xe2\x80\xa6Intel has my sympathy. Unsolicited and unwanted bulk e-mail, most of it commercial, is a\nserious annoyance and inconvenience for persons who communicate electronically through the\nInternet, and bulk e-mail that distracts employees in the workplace can adversely affect overall\nproductivity. But, as the majority persuasively explains, to establish the tort of trespass to chattels in\nCalifornia, the plaintiff must prove either damage to the plaintiff\xe2\x80\x99s personal property or actual or\nthreatened impairment of the plaintiff\xe2\x80\x99s ability to use that property. Because plaintiff Intel has not\nshown that defendant Hamidi\xe2\x80\x99s occasional bulk e-mail messages to Intel\xe2\x80\x99s employees have damaged\nIntel\xe2\x80\x99s computer system or impaired its functioning in any significant way, Intel has not established\nthe tort of trespass to chattels.\nThis is not to say that Intel is helpless either practically or legally. As a practical matter, Intel need\nonly instruct its employees to delete messages from Hamidi without reading them and to notify\nHamidi to remove their workplace e-mail addresses from his mailing lists. Hamidi\xe2\x80\x99s messages\npromised to remove recipients from the mailing list on request, and there is no evidence that Hamidi\nhas ever failed to do so. From a legal perspective, a tort theory other than trespass to chattels may\nprovide Intel with an effective remedy if Hamidi\xe2\x80\x99s messages are defamatory or wrongfully interfere\nwith Intel\xe2\x80\x99s economic interests. Additionally, the Legislature continues to study the problems caused\nby bulk e-mails and other dubious uses of modern communication technologies and may craft\nlegislation that accommodates the competing concerns in these sensitive and highly complex areas\xe2\x80\xa6.\nBrown, Justice, dissenting:\nCandidate A finds the vehicles that candidate B has provided for his campaign workers, and A\nspray paints the water soluble message, \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 takes the workers to remove the\npaint and the expense they incur in altering the bumpers to prevent further unwanted messages,\ncandidate B does not deserve an injunction unless the paint is so heavy that it reduces the cars\xe2\x80\x99 gas\nmileage or otherwise depreciates the cars\xe2\x80\x99 market value. Furthermore, candidate B has an obligation\nto permit the paint\xe2\x80\x99s display, because the cars are driven by workers and not B personally, because\nB allows his workers to use the cars to pick up their lunch or retrieve their children from school, or\nbecause the bumpers display B\xe2\x80\x99s own slogans. I disagree.\nIntel has invested millions of dollars to develop and maintain a computer system. It did this not\nto act as a public forum but to enhance the productivity of its employees. Kourosh Kenneth Hamidi\nsent as many as 200,000 e-mail messages to Intel employees. The time required to review and delete\nHamidi\xe2\x80\x99s messages diverted employees from productive tasks and undermined the utility of the\ncomputer system. There may be situations in which the value to the owner of a particular type of\nchattel may be impaired by dealing with it in a manner that does not affect its physical condition.\nThis is such a case\xe2\x80\xa6.\nOf course, Intel deserves an injunction even if its objections are based entirely on the e-mail\xe2\x80\x99s\ncontent. Intel is entitled, for example, to allow employees use of the Internet to check stock market\ntables or weather forecasts without incurring any concomitant obligation to allow access to\npornographic Web sites. A private property owner may choose to exclude unwanted mail for any\nreason, including its content\xe2\x80\xa6. Those who have contempt for grubby commerce and reverence for\nthe rarified heights of intellectual discourse may applaud today\xe2\x80\x99s decision, but even the flow of ideas\nwill be curtailed if the right to exclude is denied\xe2\x80\xa6.\nMosk, Justice, dissenting:\n\xe2\x80\xa6The majority fail to distinguish open communication in the public \xe2\x80\x9ccommons\xe2\x80\x9d of the Internet\nfrom unauthorized intermeddling on 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 mailing through the United States\nPostal Service. His action, in crossing from the public Internet into a private intranet, is more like\nintruding into a private office mailroom, commandeering the mail cart, and dropping off unwanted\n\n\x0c62\n\nTORT LAW\n\nbroadsides on 30,000 desks. Because Intel\xe2\x80\x99s security measures have been circumvented by Hamidi,\nthe majority leave Intel, which has exercised all reasonable self-help efforts, with no recourse unless\nhe causes a malfunction or systems \xe2\x80\x9ccrash.\xe2\x80\x9d Hamidi\xe2\x80\x99s repeated intrusions did more than merely\n\xe2\x80\x9cprompt discussions between \xe2\x80\x98excited and nervous managers\xe2\x80\x99 and the company\xe2\x80\x99s human resource\ndepartment\xe2\x80\x9d ; they also constituted a misappropriation of Intel\xe2\x80\x99s private computer system contrary\nto its intended use and against Intel\xe2\x80\x99s wishes\xe2\x80\xa6.\n1.\n\nQUESTIONS\nSpot the Difference: What\xe2\x80\x99s the difference between conversion and trespass to chattels?\n\n2.\n\nSelf-Help: In justifying the type of rule applied in Intel, the Restatement asserts that\n\xe2\x80\x9c[s]ufficient legal protection of the possessor\xe2\x80\x99s interest in the mere inviolability of his\nchattel is afforded by his privilege to use reasonable force to protect his possession\nagainst even harmless interference.\xe2\x80\x9d What does that mean? And do you agree?\n\n3.\n\nStraight from the Horse\xe2\x80\x99s Mouth: After the\ntrial court enjoined Hamidi from sending\nunsolicited emails, he didn\xe2\x80\x99t give up\nchallenging Intel. As he put it, \xe2\x80\x9cThey thought I\nwas this bozo, coming here from some weird\ncountry. \xe2\x80\x98He is helpless,\xe2\x80\x99 \xe2\x80\x98He will come to his\nknees.\xe2\x80\x99\xe2\x80\x9d Unsatisfied with merely filing a legal\nappeal, he rode on horseback to Intel\xe2\x80\x99s\nheadquarters\xe2\x80\x94as shown here\xe2\x80\x94to deliver a\nfloppy disk and later returned in a horsedrawn carriage with 40,000 printed copies of\nan email notifying employees that he was\nbarred from communicating with them\nthrough the internet. Could Intel have won\npunitive damages and an injunction barring\nhim from the premises? Should trespass to\nland and trespass to chattels apply identically?\n\xc3\xa3\n\nNFT PROBLEM\nTwitter CEO, Jack Dorsey, recently auctioned off his inaugural tweet\xe2\x80\x94\xe2\x80\x9cjust setting up my twttr,\xe2\x80\x9d\npublished on March 21, 2006\xe2\x80\x94for $2.9m. The tweet was sold as a nonfungible token (NFT), a\nunique digital certificate e-signed and verified by Dorsey stating who owns the media and including\nthe original tweet\xe2\x80\x99s metadata. The buyer, Malaysia-based businessman Sina Estavi, celebrated with\nglee: \xe2\x80\x9cThis is not just a tweet! I think years later people will realize the true value of this tweet, like\nthe Mona Lisa painting.\xe2\x80\x9d\nJane, a Silicon Valley businesswoman, thought the tweet belonged in the hands (or on the screen)\nof a Californian or nobody at all. She traveled to Malaysia and took Sina\xe2\x80\x99s phone from a coffee-shop\ntable. After cracking the phone\xe2\x80\x99s passcode, she accessed the NFT on Sina\xe2\x80\x99s cloud-based storage\nsystem and used malicious software to corrupt the NFT, making it impossible to see who owned the\ncertificate or view the metadata. Sina was able to restore the NFT to its original condition 14 months\nlater. He promptly flipped it for a $3.4m profit, in part due to the hype surrounding the scandal.\n(a) Despite the large profit, Sina wants to sue. Which tort gives him the best chance?\n(b) What if Sina restored the NFT in just five minutes?\n(c) What if, instead of corrupting the NFT, the malicious software irrevocably listed Jane\xe2\x80\x99s\nname as the owner on the digital certificate?\n\n\xc3\xa3\n\nJill Andresky Fraser, Fighting for the Right to Communicate, N.Y. TIMES (July 13, 2003).\n\n\x0cCASES & CRITIQUE\n\n63\n\nTANK PROBLEM\nLauren, who went blind at the age of 14 due to a childhood accident, now specializes in Supreme\nCourt litigation at Nogan & Hix in Washington, D.C. Her guide dog, Tank, helps her with everyday\ntasks and getting to work. Lauren\xe2\x80\x99s neighbor, Marco, constantly pets Tank, whistles at him, and says\n\xe2\x80\x9chi buddy\xe2\x80\x9d even though Tank is working, Lauren politely asks Marco to refrain from doing so, and\nTank\xe2\x80\x99s vest reads \xe2\x80\x9cDo Not Pet.\xe2\x80\x9d\nLauren lives in an apartment complex called The Haven. One morning, as she was taking Tank\nout to use the bathroom and play, she heard a yelp. Tank had sliced his paw on a piece of glass in\nthe grassy area in middle of the complex. Lauren had an important meeting that day, but Tank\nsimply couldn\xe2\x80\x99t walk because of the paw injury. She missed the meeting and, as a result, failed to\nreach her billable-hours goal and missed out on a $75,000 bonus. It turns out that Vicky, Lauren\xe2\x80\x99s\nold nemesis from law school who was also trying to make partner at Nogan & Hix, planted the glass.\n(a) Does Lauren have any viable claims for conversion or trespass to chattels? Based on what\npersonal property?\n(b) Should Lauren sue anyone for battery?\n(c) Once you\xe2\x80\x99ve covered negligence, return to this problem. Does Lauren have any other\ndecent claims?\n\nD. Consent\nCOPELAND v. HUBBARD BROADCASTING, INC.\nCourt of Appeals of Minnesota (1995)\nLansing, Judge:\n\n\xc3\xa3\n\n\xe2\x80\xa6In the spring of 1993, KSTP television [(owned and operated by\nHubbard)] broadcast an investigative report on the practices of two\nmetro-area veterinarians. One of the veterinarians, Dr. Sam Ulland,\ntreated Greg and Betty Copeland\xe2\x80\x99s cat. Before an April 1993 visit to\nthe Copeland home, Dr. Ulland received the Copelands\xe2\x80\x99 permission\nto bring along a student interested in a career in veterinary medicine.\nThe student, Patty Johnson, did not tell the Copelands or Dr. Ulland\nthat, in addition to being a part-time student at the University of\nMinnesota, she was also an employee of KSTP and was videotaping Dr. Ulland\xe2\x80\x99s practice methods.\nWhen the investigative report was broadcast, it included two brief video portions filmed inside\nthe Copelands\xe2\x80\x99 house. The Copelands sued KSTP and Johnson (collectively KSTP) for trespass\xe2\x80\xa6.\nThe district court\xe2\x80\xa6granted KSTP\xe2\x80\x99s summary judgment motion on the trespass claim\xe2\x80\xa6.\nA trespass is committed when a person enters the land of another without consent. Consent may\nbe implied from the conduct of the parties, but silence alone will not support an inference of consent.\nConsent may be geographically or temporally restricted.\nThe district court concluded that KSTP was entitled to summary judgment on the Copelands\xe2\x80\x99\ntrespass claim because Johnson did not exceed the geographic boundaries of the Copelands\xe2\x80\x99 consent\nand the Copelands did not expressly limit their consent to Johnson\xe2\x80\x99s educational or vocational goals.\nWe read the case law differently\xe2\x80\xa6. Minnesota case law establishes that an entrant may become a\ntrespasser by moving beyond the possessor\xe2\x80\x99s invitation or permission. See State v. Brooks-Scanlon\nLumber Co., 150 N.W. 912 (Minn. 1915) (when consent given to cut mature trees, cutting of\nimmature trees exceeded scope of consent and constituted trespass). Although trespass in BrooksScanlon related to tangible objects, the decision nonetheless demonstrates that the scope of consent\ncan be exceeded even though the entrant remains within the geographic limits of the consent\xe2\x80\xa6. [In\nother words,] wrongful conduct following an authorized entry on land can result in trespass.\nIn support of its motion for summary judgment, KSTP cites Baugh v. CBS, Inc., 828 F. Supp. 745\n(N.D. Cal. 1993), for the proposition that the scope of consent can be exceeded only when physical\n\xc3\xa3\n\nDoug, Cat Collar (CC BY-NC-SA 2.0).\n\n\x0c64\n\nTORT LAW\n\nboundaries are crossed. Baugh is, however, factually distinguishable. In Baugh, the homeowner\ngranted the broadcaster permission to videotape events at her house so long as they were not shown\non television. The homeowner brought a trespass action when the videotape was subsequently\nbroadcast. The court held that the scope of consent was not exceeded because the plaintiff agreed to\nthe initial videotaping and the homeowner\xe2\x80\x99s cause of action was not trespass. Baugh has limited\napplicability to this case because the Copelands did not consent to any videotaping.\nCourts in other jurisdictions have recognized trespass as a remedy when broadcasters use secret\ncameras for newsgathering. Newsgathering does not create a license to trespass or to intrude by\nelectronic means into the precincts of another\xe2\x80\x99s home or office.\nWhether a possessor of land has given consent for entry is, when disputed, a factual issue. The\ndistrict court determined that the Copelands did not present any evidence indicating that the scope\nof consent was limited to educational purposes. The record, however, indicates that consent was\ngiven only to allow a veterinary student to accompany Dr. Ulland. Viewing the evidence in the light\nmost favorable to the Copelands, there is sufficient evidence to withstand summary judgment\xe2\x80\xa6.\n1.\n\nQUESTIONS\nThe Fourth Estate: The First Amendment to the U.S. Constitution states that \xe2\x80\x9cCongress\nshall make no law\xe2\x80\xa6abridging the freedom of speech, or of the press.\xe2\x80\x9d Is Copeland\nsufficiently deferential to that constitutional command? Should there be a\nnewsgathering exception to the tort of trespass?\n\n2.\n\nNewsgathering: Do you think Copeland comes out the same way if, instead of\nvideotaping, Patty took a stealthy photo with her cellphone? Or an audio-only\nrecording? What if Patty simply took notes while inside the Copelands\xe2\x80\x99 home? Or if she\ntook notes from memory once she got back to KSTP headquarters?\n\n3.\n\nConsent Conundrums: What if Patty reasonably but mistakenly believed that the\nCopelands consented to her videotaping? Would it matter if that mistaken belief was\ndue to (1) her boss at KSTP showing her a forged videotaping consent form purportedly\nsigned by the Copelands or (2) statements made by the Copelands that implied their\nknowledge and acceptance of the surreptitious recording? (Hint: The consent rules here\nlargely mirror those surrounding intentional torts like assault and battery.)\nThe following case discusses sexual assault.\nDESNICK v. AMERICAN BROADCASTING COMPANIES, INC.\nUnited States Court of Appeals for the Seventh Circuit (1995)\n\nPosner, Chief Judge:\n\n\xc3\xa3\n\nThe plaintiffs\xe2\x80\x94an ophthalmic clinic known as the \xe2\x80\x9cDesnick\nEye Center\xe2\x80\x9d after its owner, Dr. Desnick, and two ophthalmic\nsurgeons employed by the clinic, Glazer and Simon\xe2\x80\x94appeal\nfrom the dismissal of their suit against the ABC television\nnetwork, a producer of the ABC program PrimeTime\nLive named Entine, and the program\xe2\x80\x99s star reporter, Donaldson.\nThe suit is for trespass, defamation, and other torts arising out\nof the production and broadcast of a program segment\nof PrimeTime Live that was highly critical of the Desnick Eye\nCenter\xe2\x80\xa6. The suit was dismissed for failure to state a claim\xe2\x80\xa6.\nIn March of 1993 Entine telephoned Dr. Desnick and told him that PrimeTime Live wanted to\ndo a broadcast segment on large cataract practices. The Desnick Eye Center has 25 offices in four\nmidwestern states and performs more than 10,000 cataract operations a year, mostly on elderly\npersons whose cataract surgery is paid for by Medicare. The complaint alleges\xe2\x80\xa6that Entine told\n\xc3\xa3\n\nJonny Hughes, Optician (CC BY 2.0).\n\n\x0cCASES & CRITIQUE\n\n65\n\nDesnick that the segment would not be about just one cataract practice, that it would not involve\n\xe2\x80\x9cambush\xe2\x80\x9d interviews or \xe2\x80\x9cundercover\xe2\x80\x9d surveillance, and that it would be \xe2\x80\x9cfair and balanced.\xe2\x80\x9d Thus\nreassured, Desnick permitted an ABC crew to videotape the Desnick Eye Center\xe2\x80\x99s main premises in\nChicago, to film a cataract operation \xe2\x80\x9clive,\xe2\x80\x9d and to interview doctors, technicians, and patients.\nDesnick also gave Entine a videotape explaining the Desnick Eye Center\xe2\x80\x99s services.\nUnbeknownst to Desnick, Entine had dispatched persons equipped with concealed cameras to\noffices of the Desnick Eye Center in Wisconsin and Indiana. Posing as patients, these persons\xe2\x80\x94\nseven in all\xe2\x80\x94requested eye examinations. Plaintiffs Glazer and Simon are among the employees of\nthe Desnick Eye Center who were secretly videotaped examining these \xe2\x80\x9ctest patients.\xe2\x80\x9d\nThe program aired on June 10. Donaldson introduces the segment by saying, \xe2\x80\x9cWe begin tonight\nwith the story of a so-called \xe2\x80\x98big cutter,\xe2\x80\x99 Dr. James Desnick. In our undercover investigation of the\nbig cutter you\xe2\x80\x99ll meet tonight, we turned up evidence that he may also be a big charger, doing\nunnecessary cataract surgery for the money.\xe2\x80\x9d Brief interviews with four patients of the Desnick Eye\nCenter follow. One of the patients is satisfied (\xe2\x80\x9cI was blessed\xe2\x80\x9d); the other three are not\xe2\x80\x94one of them\nsays, \xe2\x80\x9cIf you got three eyes, he\xe2\x80\x99ll get three eyes.\xe2\x80\x9d Donaldson then reports on the experiences of the\nseven test patients. The two who were under 65 and thus not eligible for Medicare reimbursement\nwere told they didn\xe2\x80\x99t need cataract surgery. Four of the other five were told they did. Glazer and\nSimon are shown recommending cataract surgery to them. Donaldson tells the viewer\nthat PrimeTime Live has hired a professor of ophthalmology to examine the test patients who had\nbeen told they needed cataract surgery, and the professor tells the viewer that they didn\xe2\x80\x99t need it\xe2\x80\x94\nwith regard to one he says, \xe2\x80\x9cI think it would be near malpractice to do surgery on him.\xe2\x80\x9d Later in the\nsegment he denies that this could just be an honest difference of opinion between professionals.\nAn ophthalmic surgeon is interviewed who had turned down a job at the Desnick Eye Center\nbecause he would not have been \xe2\x80\x9cable to screen who I was going to operate on.\xe2\x80\x9d He claims to have\nbeen told by one of the doctors at the Center (not Glazer or Simon) that \xe2\x80\x9cas soon as I reject them\n[i.e., turn down a patient for cataract surgery], they\xe2\x80\x99re going in the next room to get surgery.\xe2\x80\x9d A\nformer marketing executive for the Center says Desnick took advantage of \xe2\x80\x9cpeople who had\nAlzheimer\xe2\x80\x99s, people who did not know what planet they were on, people whose quality of life\nwouldn\xe2\x80\x99t change one iota by having cataract surgery done.\xe2\x80\x9d Two patients are interviewed who report\nmiserable experiences with the Center\xe2\x80\x94one claiming that the doctors there had failed to spot an\neasily visible melanoma, another that as a result of unnecessary cataract surgery her \xe2\x80\x9ceye ruptured,\xe2\x80\x9d\nproducing \xe2\x80\x9crunning pus.\xe2\x80\x9d A former employee tells the viewer that Dr. Desnick alters patients\xe2\x80\x99\nmedical records to show they need cataract surgery\xe2\x80\x94for example, changing the record of one\npatient\xe2\x80\x99s vision test from 20/30 to 20/80\xe2\x80\x94and that he instructs all members of his staff to use pens\nof the same color in order to facilitate the alteration of patients\xe2\x80\x99 records.\nOne symptom of cataracts is that lights of normal brightness produce glare. Glazer is shown\ntelling a patient, \xe2\x80\x9cYou know, you\xe2\x80\x99re getting glare. I would say we could do significantly better [with\nan operation].\xe2\x80\x9d And Simon is shown asking two patients, \xe2\x80\x9cDo you ever notice any glare or blurriness\nwhen you\xe2\x80\x99re driving, or difficulty with the signs?\xe2\x80\x9d Both say no, and immediately Donaldson tells the\nviewer that \xe2\x80\x9cthe Desnick Center uses a very interesting machine, called an auto-refractor, to\ndetermine whether there are glare problems.\xe2\x80\x9d Donaldson demonstrates the machine, then says that\n\xe2\x80\x9cPaddy Kalish is an optometrist who says that when he worked at the Desnick clinic from 1987 to\n1990, the machine was regularly rigged. He says he watched a technician tamper with the machine,\nthis way\xe2\x80\x9d\xe2\x80\x94and then Kalish gives a demonstration, adding, \xe2\x80\x9cThis happened routinely for all the older\npatients that came in for the eye exams.\xe2\x80\x9d Donaldson reveals that Dr. Desnick has obtained a\njudgment against Kalish for defamation, but adds that \xe2\x80\x9cKalish is not the only one to tell us the\nmachine may have been rigged. PrimeTime talked to four other former Desnick employees who say\nalmost everyone failed the glare test.\xe2\x80\x9d\nThere is more, including mention of a proceeding begun by the Illinois Medical Board in which\nDr. Desnick is charged with a number of counts of malpractice and deception\xe2\x80\x94and an \xe2\x80\x9cambush\xe2\x80\x9d\ninterview. Donaldson accosts Desnick at O\xe2\x80\x99Hare Airport and cries, \xe2\x80\x9cIs it true, Doctor, that you\nchanged medical records to show less vision than your patients actually have? We\xe2\x80\x99ve been told,\nDoctor, that you\xe2\x80\x99ve changed the glare machine so we have a different reading. Is that correct?\nDoctor, why won\xe2\x80\x99t you respond to the questions?\xe2\x80\x9d\n\n\x0c66\n\nTORT LAW\n\nThe plaintiffs\xe2\x80\x99 claims fall into two distinct classes. The first arises from the broadcast itself\xe2\x80\xa6.\nThe broadcast is alleged to have defamed the three plaintiffs by charging that the glare machine is\ntampered with\xe2\x80\xa6. [Due to ongoing factual disputes, it] is not so clear at this stage that the defamation\ncount of the complaint can properly be dismissed. The second class of claims in this case\nconcerns\xe2\x80\xa6the methods that the defendants used to create the broadcast segment. [Specifically,\nplaintiffs allege] that the defendants committed a trespass in insinuating the test patients into the\nWisconsin and Indiana offices of the Desnick Eye Center\xe2\x80\xa6.\nTo enter upon another\xe2\x80\x99s land without consent is a trespass. The force of this rule has, it is true,\nbeen diluted somewhat by concepts of privilege and of implied consent. But there is no journalists\xe2\x80\x99\nprivilege to trespass. And there can be no implied consent in any non-fictitious sense of the term\nwhen express consent is procured by a misrepresentation or a misleading omission. The Desnick\nEye Center would not have agreed to the entry of the test patients into its offices had it known they\nwanted eye examinations only in order to gather material for a television expos\xc3\xa9 of the Center and\nthat they were going to make secret videotapes of the examinations. Yet some cases\xe2\x80\xa6deem consent\neffective even though it was procured by fraud. There must be something to this surprising result.\nWithout it a restaurant critic could not conceal his identity when he ordered a meal, or a browser\npretend to be interested in merchandise that he could not afford to buy. Dinner guests would be\ntrespassers if they were false friends who never would have been invited had the host known their\ntrue character, and a consumer who in an effort to bargain down an automobile dealer falsely\nclaimed to be able to buy the same car elsewhere at a lower price would be a trespasser in the dealer\xe2\x80\x99s\nshowroom. Some of these might be classified as privileged trespasses, designed to promote\ncompetition. Others might be thought justified by some kind of implied consent\xe2\x80\x94the restaurant\ncritic for example might point by way of analogy to the use of the \xe2\x80\x9cfair use\xe2\x80\x9d defense by book\nreviewers charged with copyright infringement and argue that the restaurant industry as a whole\nwould be injured if restaurants could exclude critics. But most such efforts at rationalization would\nbe little better than evasions. The fact is that consent to an entry is often given legal effect even\nthough the entrant has intentions that if known to the owner of the property would cause him for\nperfectly understandable and generally ethical or at least lawful reasons to revoke his consent.\nThe law\xe2\x80\x99s willingness to give effect to consent procured by fraud is not limited to the tort of\ntrespass. The Restatement gives the example of a man who obtains consent to sexual intercourse by\npromising a woman $100, yet (unbeknownst to her, of course) he pays her with a counterfeit bill\nand intended to do so from the start. The man is not guilty of battery, even though unconsented-to\nsexual intercourse is a battery. Yet we know that to conceal the fact that one has a venereal disease\ntransforms \xe2\x80\x9cconsensual\xe2\x80\x9d intercourse into battery. Seduction, standardly effected by false promises\nof love, is not rape; intercourse under the pretense of rendering medical or psychiatric treatment is,\nat least in most states. Trespass presents close parallels. If a homeowner opens his door to a\npurported meter reader who is in fact nothing of the sort\xe2\x80\x94just a busybody curious about the interior\nof the home\xe2\x80\x94the homeowner\xe2\x80\x99s consent to his entry is not a defense to a suit for trespass. And\nlikewise if a competitor gained entry to a business firm\xe2\x80\x99s premises posing as a customer but in fact\nhoping to steal the firm\xe2\x80\x99s trade secrets.\nHow to distinguish the two classes of case\xe2\x80\x94the seducer from the medical impersonator, the\nrestaurant critic from the meter-reader impersonator? The answer can have nothing to do with\nfraud; there is fraud in all the cases. It has to do with the interest that the torts in question, battery\nand trespass, protect. The one protects the inviolability of the person, the other the inviolability of\nthe person\xe2\x80\x99s property. The woman who is seduced wants to have sex with her seducer, and the\nrestaurant owner wants to have customers. The woman who is victimized by the medical\nimpersonator has no desire to have sex with her doctor; she wants medical treatment. And the\nhomeowner victimized by the phony meter reader does not want strangers in his house unless they\nhave authorized service functions. The dealer\xe2\x80\x99s objection to the customer who claims falsely to have\na lower price from a competing dealer is not to the physical presence of the customer, but to the\nfraud that he is trying to perpetuate. The lines are not bright\xe2\x80\x94they are not even inevitable. They are\nthe traces of the old forms of action, which have resulted in a multitude of artificial distinctions in\nmodern law. But that is nothing new.\n\n\x0cCASES & CRITIQUE\n\n67\n\nThere was no invasion in the present case of any of the specific interests that the tort of trespass\nseeks to protect. The test patients entered offices that were open to anyone expressing a desire for\nophthalmic services and videotaped physicians engaged in professional, not personal,\ncommunications with strangers (the testers themselves). The activities of the offices were not\ndisrupted,\xe2\x80\xa6[n]or was there any invasion of a person\xe2\x80\x99s private space, as in our hypothetical meterreader case, as in the famous case of De May v. Roberts, 9 N.W. 146 (Mich. 1881) (where a doctor,\ncalled to the plaintiff\xe2\x80\x99s home to deliver her baby, brought along with him a friend who was curious\nto see a birth but was not a medical doctor, and represented the friend to be his medical\nassistant)\xe2\x80\xa6and as in Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971), on which the plaintiffs\nin our case rely. Dietemann involved a home. True, the portion invaded was an office, where the\nplaintiff performed quack healing of nonexistent ailments. The parallel to this case is plain enough,\nbut there is a difference. Dietemann was not in business, and did not advertise his services or charge\nfor them. His quackery was private.\nNo embarrassingly intimate details of anybody\xe2\x80\x99s life were publicized in the present case. There\nwas no eavesdropping on a private conversation; the testers recorded their own conversations with\nthe Desnick Eye Center\xe2\x80\x99s physicians. There was no violation of the doctor-patient privilege. There\nwas no theft, or intent to steal, trade secrets; no disruption of decorum, of peace and quiet; no noisy\nor distracting demonstrations. Had the testers been undercover FBI agents, there would have been\nno violation of the Fourth Amendment, because there would have been no invasion of a legally\nprotected interest in property or privacy. \xe2\x80\x9cTesters\xe2\x80\x9d who pose as prospective home buyers in order\nto gather evidence of housing discrimination are not trespassers even if they are private persons not\nacting under color of law. The situation of the defendants\xe2\x80\x99 \xe2\x80\x9ctesters\xe2\x80\x9d is analogous. Like testers seeking\nevidence of violation of anti-discrimination laws, the defendants\xe2\x80\x99 test patients gained entry into the\nplaintiffs\xe2\x80\x99 premises by misrepresenting their purposes (more precisely by a misleading omission to\ndisclose those purposes). But the entry was not invasive in the sense of infringing the kind of interest\nof the plaintiffs that the law of trespass protects; it was not an interference with the ownership or\npossession of land. We need not consider what if any difference it would make if the plaintiffs had\nfestooned the premises with signs forbidding the entry of testers or other snoops. Perhaps none, but\nthat is an issue for another day\xe2\x80\xa6.\nOne further point about the claims concerning the making of the program segment, as distinct\nfrom the content of the segment itself, needs to be made. The Supreme Court in the name of the\nFirst Amendment has hedged about defamation suits, even when not brought by public figures, with\nmany safeguards designed to protect a vigorous market in ideas and opinions. Today\xe2\x80\x99s \xe2\x80\x9ctabloid\xe2\x80\x9d\nstyle investigative television reportage, conducted by networks desperate for viewers in an\nincreasingly competitive television market, constitutes\xe2\x80\x94although it is often shrill, one-sided, and\noffensive, and sometimes defamatory\xe2\x80\x94an important part of that market. It is entitled to all the\nsafeguards with which the Supreme Court has surrounded liability for defamation. And it is entitled\nto them regardless of the name of the tort, and, we add, regardless of whether the tort suit is aimed\nat the content of the broadcast or the production of the broadcast. If the broadcast itself does not\ncontain actionable defamation, and no established rights are invaded in the process of creating it\n(for the media have no general immunity from tort or contract liability), then the target has no legal\nremedy even if the investigatory tactics used by the network are surreptitious, confrontational,\nunscrupulous, and ungentlemanly\xe2\x80\xa6.\n\n\x0c68\n\nTORT LAW\n\n1.\n\nQUESTIONS\nIf It Ducks Like a Quack: In Dietemann\nv. Time, mentioned briefly above in\nDesnick, two Life magazine reporters\nwriting an article on medical quackery\ntargeted Antone Dietemann, a disabled\nveteran and plumber who professed to\nheal people with herbs and other\nunusual remedies. The reporters entered\nDietemann\xe2\x80\x99s home posing as patients\nand used hidden cameras and\nmicrophones to photograph and record\nwhat happened. Life ultimately published the photos and a partial transcript of the\nconversation, while also giving the materials to a local district attorney, who prosecuted\nDietemann for practicing medicine without a license. After Dietemann sued the\nmagazine\xe2\x80\x99s publisher, the Ninth Circuit explained that the Constitution doesn\xe2\x80\x99t give\nreporters a special right to trespass or invade people\xe2\x80\x99s privacy: \xe2\x80\x9cThe First Amendment\nhas never been construed to accord newsmen immunity from torts or crimes committed\nduring the course of newsgathering. The First Amendment is not a license to trespass,\nto steal, or to intrude by electronic means into the precincts of another\xe2\x80\x99s home or office.\nIt does not become such a license simply because the person subjected to the intrusion\nis reasonably suspected of committing a crime.\xe2\x80\x9d Do you agree with that decision? Is\nDesnick to the contrary? Do undercover journalists need the First Amendment if they\ncan rely on decisions like Desnick to raise the defense of consent?\n\xc3\xa3\n\nTECH SUPPORT PROBLEM\nProfessor Peaves teaches Privacy Law at St. Mark\xe2\x80\x99s School of Law. Despite being quite tech-savvy,\nshe could never get her slides to show on the screen during class. One Friday, she stuck around after\nclass to figure it out once and for all. After calling IT for some help, one of the support staff named\nJoan emailed Peaves a link and told her to click it. Peaves, who was using her personal laptop, did as\nJoan asked. Through the link, Joan seized control of Peaves\xe2\x80\x99s computer and used it as an extension\nof her own. Peaves watched as Joan moved the mouse around and clicked various settings for a total\nof four minutes.\nOn her end, Joan was downloading all of Peaves\xe2\x80\x99s personal photos while deleting them from\nPeaves\xe2\x80\x99s computer as she went along. Although the issue with the slides was resolved, a few days\nlater Peaves found herself fired after some photos showing her engaging in illegal activity were sent\nto the Dean of St. Mark\xe2\x80\x99s.\n(a) Suspecting Joan as the culprit, what possible tort claims does Peaves have?\n(b) Does consent defeat Peaves\xe2\x80\x99s claim against Joan?\n(c) Once you\xe2\x80\x99ve covered public disclosure of private facts, come back to this problem. Does\nPeaves have a viable claim?\n\n\xc3\xa3\n\nA Crackdown on Quackery, LIFE (Nov. 1, 1963).\n\n\x0cCASES & CRITIQUE\n\nCHAPTER\n\n3:\n\n69\n\nCOMMUNICATIONS TORTS\n\nA. Public Disclosure of Private Facts\nRESTATEMENT (SECOND) OF TORTS \xc2\xa7 652D\nPublicity Given to Private Life (1965)\nOne who gives publicity to a matter concerning the private\nlife of another is subject to liability to the other for invasion\nof his privacy, if the matter publicized is of a kind that\n\xc3\xa3\n\n(a) would be highly offensive to a reasonable person, and\n(b) is not of legitimate concern to the public\xe2\x80\xa6.\na. Publicity.\xe2\x80\xa6\xe2\x80\x9cPublicity\xe2\x80\x9d\xe2\x80\xa6means that the matter is made\npublic, by communicating it to the public at large, or to so\nmany persons that the matter must be regarded as\nsubstantially certain to become one of public knowledge. The\xe2\x80\xa6means of communication\xe2\x80\xa6may be\noral, written or by any other means\xe2\x80\xa6. Thus it is not an invasion of the right of privacy\xe2\x80\xa6to\ncommunicate a fact concerning the plaintiff\xe2\x80\x99s private life to a single person or even to a small group\nof persons. On the other hand, any publication in a newspaper or a magazine, even of small\ncirculation, or in a handbill distributed to a large number of persons, or any broadcast over the radio,\nor statement made in an address to a large audience, is sufficient to give publicity within the meaning\nof the term as it is used in this Section. The distinction, in other words, is one between private and\npublic communication\xe2\x80\xa6.\nb. Private life.\xe2\x80\xa6There is no liability when the defendant merely gives further publicity to\ninformation about the plaintiff that is already public\xe2\x80\xa6. On the other hand, if the record is one not\nopen to public inspection, as in the case of income tax returns, it is not public, and there is an\ninvasion of privacy when it is made so. Similarly, there is no liability for giving further publicity to\nwhat the plaintiff himself leaves open to the public eye. Thus he normally cannot complain when\nhis photograph is taken while he is walking down the public street and is published in the defendant\xe2\x80\x99s\nnewspaper. Nor is his privacy invaded when the defendant gives publicity to a business or activity\nin which the plaintiff is engaged in dealing with the public. On the other hand, when a photograph\nis taken without the plaintiff\xe2\x80\x99s consent in a private place, or one already made is stolen from his\nhome, the plaintiff\xe2\x80\x99s appearance that is made public when the picture appears in a newspaper is still\na private matter, and his privacy is invaded. Every individual has some phases of his life and his\nactivities and some facts about himself that he does not expose to the public eye, but keeps entirely\nto himself or at most reveals only to his family or to close friends. Sexual relations, for example, are\nnormally entirely private matters, as are family quarrels, many unpleasant or disgraceful or\nhumiliating illnesses, most intimate personal letters, most details of a man\xe2\x80\x99s life in his home, and\nsome of his past history that he would rather forget. When these intimate details of his life are spread\nbefore the public gaze in a manner highly offensive to the ordinary reasonable man, there is an\nactionable invasion of his privacy, unless the matter is one of legitimate public interest\xe2\x80\xa6.\n1.\n\n2.\n\n\xc3\xa3\n\nQUESTIONS\nJudges and Juries: Who should decide whether publicizing a matter would be highly\noffensive to a reasonable person? How about whether the matter is of legitimate public\nconcern? Are these tasks better entrusted to judges or juries? What are the benefits and\nrisks to each decisionmaker?\nFacebook Friends and Foes: How does comment a from Restatement \xc2\xa7 652D translate\ninto the digital age? If you post a private fact about someone on Twitter or Snapchat, are\nyou on the hook? What about in a DM on Instagram? How about in a Facebook group\nor on your Facebook wall?\n\nDaniel Novta, Land of the Tabloids (CC BY 2.0).\n\n\x0c70\n\nTORT LAW\n\nThe second question after the following case discusses sexual assault.\nSIDIS v. F-R PUBLISHING CORP.\nUnited States Court of Appeals for the Second Circuit (1940)\nClark, Judge:\n\n\xc3\xa3\n\nWilliam James Sidis was the unwilling subject of a brief\nbiographical sketch and cartoon printed in The New Yorker weekly\nmagazine for August 14, 1937\xe2\x80\xa6. He brought an action in the district\ncourt against the publisher, F-R Publishing Corporation,\xe2\x80\xa6[and]\nalleged violation of his right of privacy\xe2\x80\xa6.\nWilliam James Sidis was a famous child prodigy in 1910. His\nname and prowess were well known to newspaper readers of the\nperiod. At the age of eleven, he lectured to distinguished\nmathematicians on the subject of Four-Dimensional Bodies. When\nhe was sixteen, he was graduated from Harvard College, amid\nconsiderable public attention. Since then, his name has appeared in\nthe press only sporadically, and he has sought to live as\nunobtrusively as possible. Until the articles objected to appeared in\nThe New Yorker, he had apparently succeeded in his endeavor to avoid the public gaze.\nAmong The New Yorker\xe2\x80\x99s features are brief biographical sketches of current and past\npersonalities. In the latter department, which appears haphazardly under the title of \xe2\x80\x9cWhere Are\nThey Now?\xe2\x80\x9d the article on Sidis was printed with a subtitle \xe2\x80\x9cApril\nFool.\xe2\x80\x9d The author describes his subject\xe2\x80\x99s early accomplishments\nin mathematics and the wide-spread attention he received, then\nrecounts his general breakdown and the revulsion which Sidis\nthereafter felt for his former life of fame and study. The\nunfortunate prodigy is traced over the years that followed,\nthrough his attempts to conceal his identity, through his chosen\ncareer as an insignificant clerk who would not need to employ\nunusual mathematical talents, and through the bizarre ways in\nwhich his genius flowered, as in his enthusiasm for collecting\nstreetcar transfers and in his proficiency with an adding machine.\nThe article closes with an account of an interview with Sidis at his\npresent lodgings, \xe2\x80\x9ca hall bedroom of Boston\xe2\x80\x99s shabby south end.\xe2\x80\x9d\nThe untidiness of his room, his curious laugh, his manner of\nspeech, and other personal habits are commented upon at length,\nas is his present interest in the lore of the Okamakammessett\n[tribe]. The subtitle is explained by the closing sentence, quoting Sidis as saying \xe2\x80\x9cwith a grin\xe2\x80\x9d that it\nwas strange, \xe2\x80\x9cbut, you know, I was born on April Fool\xe2\x80\x99s Day.\xe2\x80\x9d Accompanying the biography is a\nsmall cartoon showing the genius of eleven years lecturing to a group of astounded professors.\nIt is not contended that any of the matter printed is untrue. Nor is the manner of the author\nunfriendly; Sidis today is described as having \xe2\x80\x9ca certain childlike charm.\xe2\x80\x9d But the article is merciless\nin its dissection of intimate details of its subject\xe2\x80\x99s personal life, and this in company with elaborate\naccounts of Sidis\xe2\x80\x99 passion for privacy and the pitiable lengths to which he has gone in order to avoid\npublic scrutiny. The work possesses great reader interest, for it is both amusing and instructive; but\nit may be fairly described as a ruthless exposure of a once public character, who has since sought\nand has now been deprived of the seclusion of private life\xe2\x80\xa6.\n[W]e are asked to declare that this exposure transgresses upon plaintiff\xe2\x80\x99s right of\nprivacy\xe2\x80\xa6. None of the cited rulings goes so far as to prevent a newspaper or magazine from\npublishing the truth about a person, however intimate, revealing, or harmful the truth may be. Nor\nare there any decided cases that confer such a privilege upon the press\xe2\x80\xa6.\n\xc3\xa3\n\nJared L. Manley & James Thurber, Where Are They Now?, NEW YORKER (Aug. 14, 1937).\n\n\x0cCASES & CRITIQUE\n\n71\n\nAll comment upon the right of privacy must stem from the famous article by Warren and\nBrandeis on The Right of Privacy in 4 Harvard Law Review 193. The learned authors of that paper\nwere convinced that some limits ought to be imposed upon the privilege of newspapers to publish\ntruthful items of a personal nature[:]\nThe press is overstepping in every direction the obvious bounds of propriety and\nof decency. Gossip is no longer the resource of the idle and of the vicious, but has\nbecome a trade, which is pursued with industry as well as effrontery. The intensity\nand complexity of life, attendant upon advancing civilization, have rendered\nnecessary some retreat from the world, and man, under the refining influence of\nculture, has become more sensitive to publicity, so that solitude and privacy have\nbecome more essential to the individual; but modern enterprise and invention\nhave, through invasions upon his privacy, subjected him to mental pain and\ndistress, far greater than could be inflicted by mere bodily injury.\nWarren and Brandeis realized that the interest of the individual in privacy must inevitably\nconflict with the interest of the public in news. Certain public figures, they conceded, such as holders\nof public office, must sacrifice their privacy and expose at least part of their lives to public scrutiny\nas the price of the powers they attain. But even public figures were not to be stripped bare. \xe2\x80\x9cIn\ngeneral, then, the matters of which the publication should be repressed may be described as those\nwhich concern the private life, habits, acts, and relations of an individual, and have no legitimate\nconnection with his fitness for a public office. Some things all men alike are entitled to keep from\npopular curiosity, whether in public life or not, while others are only private because the persons\nconcerned have not assumed a position which makes their doings legitimate matters of public\ninvestigation.\xe2\x80\x9d Warren and Brandeis, supra, at 216.\nIt must be conceded that under the strict standards suggested by these authors plaintiff\xe2\x80\x99s right of\nprivacy has been invaded. Sidis today is neither politician, public administrator, nor statesman. Even\nif he were, some of the personal details revealed were of the sort that Warren and Brandeis believed\n\xe2\x80\x9call men alike are entitled to keep from popular curiosity.\xe2\x80\x9d\nBut despite eminent opinion to the contrary, we are not yet disposed to afford to all of the\nintimate details of private life an absolute immunity from the prying of the press. Everyone will agree\nthat at some point the public interest in obtaining information becomes dominant over the\nindividual\xe2\x80\x99s desire for privacy. Warren and Brandeis were willing to lift the veil somewhat in the\ncase of public officers. We would go further, though we are not yet prepared to say how far. At least\nwe would permit limited scrutiny of the \xe2\x80\x9cprivate\xe2\x80\x9d life of any person who has achieved, or has had\nthrust upon him, the questionable and indefinable status of a \xe2\x80\x9cpublic figure.\xe2\x80\x9d\nWilliam James Sidis was once a public figure. As a child prodigy, he excited both admiration and\ncuriosity. Of him great deeds were expected. In 1910, he was a person about whom the newspapers\nmight display a legitimate intellectual interest, in the sense meant by Warren and Brandeis, as\ndistinguished from a trivial and unseemly curiosity. But the precise motives of the press we regard\nas unimportant. And even if Sidis had loathed public attention at that time, we think his uncommon\nachievements and personality would have made the attention permissible. Since then Sidis has\ncloaked himself in obscurity, but his subsequent history, containing as it did the answer to the\nquestion of whether or not he had fulfilled his early promise, was still a matter of public concern.\nThe article in The New Yorker sketched the life of an unusual personality, and it possessed\nconsiderable popular news interest.\nWe express no comment on whether or not the news worthiness of the matter printed will always\nconstitute a complete defense. Revelations may be so intimate and so unwarranted in view of the\nvictim\xe2\x80\x99s position as to outrage the community\xe2\x80\x99s notions of decency. But when focused upon public\ncharacters, truthful comments upon dress, speech, habits, and the ordinary aspects of personality\nwill usually not transgress this line. Regrettably or not, the misfortunes and frailties of neighbors\nand \xe2\x80\x9cpublic figures\xe2\x80\x9d are subjects of considerable interest and discussion to the rest of the population.\nAnd when such are the mores of the community, it would be unwise for a court to bar their\nexpression in the newspapers, books, and magazines of the day.\n\n\x0c72\n\nTORT LAW\n\nPlaintiff\xe2\x80\xa6charged actual malice in the publication, and now claims that an order of dismissal\nwas improper in the face of such an allegation. We cannot agree. If plaintiff\xe2\x80\x99s right of privacy was\nnot invaded by the article, the existence of actual malice in its publication would not change that\nresult. Unless made so by statute, a truthful and therefore non-libelous statement will not become\nlibelous when uttered maliciously. A similar rule should prevail on invasions of the right of privacy.\nPersonal ill-will is not an ingredient of the offence, any more than in an ordinary case of trespass to\nperson or to property. Nor does the malice give rise to an independent wrong based on an\nintentional invasion of the plaintiff\xe2\x80\x99s interest in mental and emotional tranquillity. This interest,\nhowever real, is one not yet protected by the law\xe2\x80\xa6.\n1.\n\nQUESTIONS\nWhat\xe2\x80\x99s the Matter (of Public Concern)? The court concludes that Sidis\xe2\x80\x99s history\nremained a \xe2\x80\x9cmatter of public concern.\xe2\x80\x9d Is this a descriptive or normative concept?\nSpecifically, do we care whether people actually are concerned (descriptively) or whether\nthey should be concerned (normatively)?\n\n2.\n\nQuasi-Constitutional Rules: Notice that Sidis never mentions the Constitution, nor\ndoes it explicitly invoke First Amendment freedoms of speech or the press. Instead, the\ncourt relies on the quasi-constitutional concept of whether liability would restrict\ncommunications about matters of public concern. As the Restatement explains in a\n\xe2\x80\x9cspecial note\xe2\x80\x9d following \xc2\xa7 652D, although the Supreme Court \xe2\x80\x9chas placed a number of\nsubstantial restrictions on tort actions involving false and defamatory publications,\xe2\x80\x9d the\nquestions of whether and when the public-disclosure tort is constitutional \xe2\x80\x9chas not been\nestablished with certainty.\xe2\x80\x9d Under Cox Broadcasting Co. v. Cohn, 420 U.S. 469 (1975),\nwe know that the First Amendment bars recovery for disclosure of truthful facts that are\na matter of public record\xe2\x80\x94in that case, the name of a sexual-assault victim\xe2\x80\x94but the case\nleaves unsettled whether courts may constitutionally impose liability for disclosing other\nprivate facts that would be highly offensive to a reasonable person and that aren\xe2\x80\x99t of\nlegitimate concern. How is it possible that such important legal questions remain\nunanswered? What do you think the answer should be?\n\n3.\n\nPicketing Priests: Three priests protest a healthcare clinic by carrying large signs\ndisplaying the names of two women due to have abortions and imploring the women\nnot to \xe2\x80\x9ckill their babies.\xe2\x80\x9d The women had kept their abortion plans private, but members\nof their community now see the signs and a passerby tweets photos from the scene. Are\nthe priests liable for public disclosure of private facts? Does it matter how the priests\ndiscovered the women\xe2\x80\x99s names? What if they had climbed into a nearby dumpster and\nfound discarded schedules showing the clinic\xe2\x80\x99s upcoming appointments? What if the\nwomen aren\xe2\x80\x99t ashamed of their decision to get an abortion?\nDAILY TIMES DEMOCRAT v. GRAHAM\nSupreme Court of Alabama (1964)\n\nHarwood, Justice:\n\n\xc3\xa3\n\nThis is an appeal from a judgment in favor of the plaintiff in an action\ncharging an invasion by the defendant of the plaintiff\xe2\x80\x99s right of privacy.\nDamages were assessed by the jury at $4,166.00\xe2\x80\xa6.\nAppellee is a woman 44 years of age who has lived in Cullman County,\nAlabama her entire life. She is married and has two sons, ages 10 and 8.\nThe family resides in a rural community where her husband is engaged in\nthe business of raising chickens. The appellee has led the usual life of a\nhousewife in her community, participating in normal church and\ncommunity affairs.\n\xc3\xa3\n\nMTAPhotos, Marilyn Monroe Lexington Subway Image (CC BY 2.0).\n\n\x0cCASES & CRITIQUE\n\n73\n\nOn 9 October 1961, the Cullman County Fair was in progress. On that day the appellee took her\ntwo children to the Fair. After going on some of the rides, the boys expressed a wish to go through\nwhat is called in the record the \xe2\x80\x9cFun House.\xe2\x80\x9d The boys were afraid to enter alone so the appellee\naccompanied them. She testified she had never been through a Fun House before and had no\nknowledge that there was a device that blew jets of air up from the platform of the Fun House upon\nwhich one exited therefrom.\nThe appellee entered the Fun House with her two boys and as she was leaving her dress was\nblown up by the air jets and her body was exposed from the waist down, with the exception of that\nportion covered by her \xe2\x80\x9cpanties.\xe2\x80\x9d At this moment the appellant\xe2\x80\x99s photographer snapped a picture\nof the appellee in this situation. This was done without the appellee\xe2\x80\x99s knowledge or consent. Four\ndays later the appellant published this picture on the front page of its newspaper\xe2\x80\xa6. On the Sunday\nfollowing the publication of the picture, the appellee went into the city of Cullman. There she saw\nthe appellant\xe2\x80\x99s newspaper display with her picture on the front page in one of the appellant\xe2\x80\x99s\nnewspaper racks, and she also saw copies of the said newspaper in other places.\nWhile the appellee\xe2\x80\x99s back was largely towards the camera in the picture, her two sons are in the\npicture, and the photograph was recognized as being of her by other people with whom she was\nacquainted. The matter of her photograph was mentioned to the appellee by others on several\noccasions. Evidence offered by the appellee during the trial tended to show that the appellee, as a\nresult of the publication of the picture, became embarrassed, self-conscious, upset and was known\nto cry on occasions.\nSince the article by Warren and Brandeis, 4 Harvard Law Review 193, formulating the action for\ninvasion of one\xe2\x80\x99s privacy, the decisions in those states accepting such doctrine have been\nnumerous\xe2\x80\xa6. Among the alternative statements of what may constitute an actionable invasion of\none\xe2\x80\x99s right of privacy, this court stated that such action accrued upon the wrongful intrusion into\none\xe2\x80\x99s private activities, in such manner as to outrage or cause mental suffering, shame or humiliation\nto a person of ordinary sensibilities.\nThere is a fertile medium in this field of torts for the production of conflicts between the right of\nthe individual to be let alone, and the right of the public to know\xe2\x80\x94the latter concept being\ncrystalized in our age old concept of freedom of speech and of the press.\nThe right of action for invasion of privacy has had to give way to the interest of the public to be\ninformed, where as stated by the late Dean Hepburn in his Cases on Torts:\n(4) It does not exist where the person has published the material complained of or\nconsented thereto. It does not exist where a person has become so prominent that\nby his very prominence he has dedicated his life to the public and thereby waived\nhis right to privacy. (5) There can be no privacy in that which is already public.\n(6) It does not exist in the dissemination of news and news events nor in the\ndiscussion of events of the life of a person in whom the public has a rightful interest,\nnor where the information would be of public benefit as in the case of a candidate\nfor public office.\n\xe2\x80\xa6Counsel [for the appellant] contends that as a matter of law the publication of the photograph\nwas a matter of legitimate news of interest to the public; that the publishing of the picture was in\nconnection with a write-up of the Fair, which was a matter of legitimate news. If this be so, then of\ncourse the appellant would have been privileged to have published the picture\xe2\x80\xa6. We can see nothing\nof legitimate news value in the photograph. Certainly it discloses nothing as to which the public is\nentitled to be informed. Even so,\xe2\x80\xa6Mr. Prosser in his article on \xe2\x80\x9cPrivacy\xe2\x80\x9d observes: \xe2\x80\x9cIt may\nnevertheless be suggested that there must be yet some undefined limits of common decency as to\nwhat can be published about anyone; and that a photograph of indecent exposure, for example, can\nnever be legitimate \xe2\x80\x98news.\xe2\x80\x99\xe2\x80\x9d\nIn the Restatement of the Law of Torts\xe2\x80\xa6it is provided: \xe2\x80\x9cA person who unreasonably and\nseriously interferes with another\xe2\x80\x99s interest in not having his affairs known to others or his likeness\nexhibited to the public is liable to the other.\xe2\x80\x9d In the comment under this section it is stated: \xe2\x80\x9cThese\nlimits\xe2\x80\x9d (justifiable invasion of privacy) \xe2\x80\x9care exceeded where intimate details of the life of one who\n\n\x0c74\n\nTORT LAW\n\nhas never manifested a desire to have publicity are exposed to the public, or where photographs of a\nperson in an embarrassing pose are surreptitiously taken and published.\xe2\x80\x9d\nNot only was this photograph embarrassing to one of normal sensibilities, we think it could\nproperly be classified as obscene, in that \xe2\x80\x9cobscene\xe2\x80\x9d means offensive to modesty or decency; or\nexpressing to the mind or view something which delicacy, purity, or decency forbid to be expressed\xe2\x80\xa6.\nCounsel further argues that the court erred in refusal of appellant\xe2\x80\x99s requested affirmative charges\nin that appellee\xe2\x80\x99s picture was taken at the time she was a part of a public scene, and the publication\nof the photograph could not therefore be deemed an invasion of her privacy as a matter of law. The\nproposition for which appellant contends is probably best illustrated by the following quotation\nfrom Forster v. Manchester, 189 A.2d 147 (Pa. 1963):\nOn the public street, or in any other public place, the plaintiff has no right to be\nalone, and it is no invasion of his privacy to do no more than follow him about.\nNeither is it such an invasion to take his photograph in such a place, since this\namounts to nothing more than making a record, not differing essentially from a\nfull written description of a public sight which anyone present would be free to see.\nAdmittedly this principle is established by the cases\xe2\x80\xa6. [But] when a legal principle is pushed to\nan absurdity, the principle is not abandoned, but the absurdity avoided. In other words, a purely\nmechanical application of legal principles should not be permitted to create an illogical conclusion.\nTo hold that one who is involuntarily and instantaneously enmeshed in an embarrassing pose\nforfeits her right of privacy merely because she happened at the moment to be part of a public scene\nwould be illogical, wrong, and unjust.\nOne who is a part of a public scene may be lawfully photographed as an incidental part of that\nscene in his ordinary status. Where the status he expects to occupy is changed without his volition\nto a status embarrassing to an ordinary person of reasonable sensitivity, then he should not be\ndeemed to have forfeited his right to be protected from an indecent and vulgar intrusion of his right\nof privacy merely because misfortune overtakes him in a public place\xe2\x80\xa6.\n1.\n\nQUESTIONS\nCommunity Standards: How is the outrageousness of a disclosure determined by a\ncommunity-based standard? And how should the law deal with shifting conceptions of\nprivacy in the modern world? Should the legal rules adjust over time, or do we need\nthose rules to remain stable to prevent changing social norms from eroding our privacy?\n\xc3\xa3\n\n2.\n\n\xc3\xa3\n\nThe Streisand Effect: In 2003,\nsinger-actress Barbara Streisand\nsued\nan\nenvironmentalist\nphotographer,\nKenneth\nAdelman, who took an aerial\nphoto of her house for the\nCalifornia Coastal Records\nProject, an initiative showing\ndegradation of the California\ncoast. The trial court held that\nthe photo captured a matter of\npublic concern, noting that\nStreisand had opened her home to reporters in the past and that no one was visible in the\nphoto. This case is the root of the so-called \xe2\x80\x9cStreisand Effect\xe2\x80\x9d\xe2\x80\x94a social phenomenon that\noccurs when efforts to hide information has the unintended consequence of further\npublicizing it, often via the internet. The Streisand Effect can also be understood as a legal\nphenomenon, particularly for privacy torts: suing can garner greater attention, thereby\nworsening the privacy invasion sought to be remedied by the lawsuit. Indeed, before\nStreisand sued, the photo was downloaded six times (twice by her lawyers); after the\n\nCopyright \xc2\xa9 2002\xe2\x80\x932021 Kenneth & Gabrielle Adelman, California Coastal Records Project, www.californiacoastline.org.\n\n\x0cCASES & CRITIQUE\n\n75\n\nlawsuit, 420,000 people did so in a month. For a\nrecent example involving a different tort,\nconsider the parody Twitter account, Devin\nNunes\xe2\x80\x99 cow (@DevinCow). Unamused,\nCongressman Devin Nunes sued the satirist\n(and Twitter) for defamation. The account had\n1,200 followers before the lawsuit, but soon\nboasted over 600,000 acolytes. Are the potential\nbenefits of suing worth the likely costs?\n\nTOUR DE ATLANTA PROBLEM\nJaden had just finished second in the Tour de Atlanta, a 105-mile bike race through Metro Atlanta.\nPresident Bennett, an Atlanta native and avid cyclist, was preparing to award the medals when Jaden\nnoticed a woman reaching into her fanny pack for what looked like a small pistol. Jaden made his way\ntowards the woman, relying on his instincts from a brief stint in the military. The would-be assassin\ngot a shot off, but Jaden grabbed her arm just as she fired. The bullet missed the president.\nJaden became an instant media star. A few newspapers speculated as to why President Bennett\nhadn\xe2\x80\x99t publicly thanked Jaden. The Gwinnett Globe, for example, published an piece suggesting that\nJaden was a prominent member of Savannah\xe2\x80\x99s gay community and claiming that Jaden\xe2\x80\x99s sexual\norientation explained the president\xe2\x80\x99s silence. Jaden sues the Globe for public disclosure of private facts.\n(a) What would Jaden\xe2\x80\x99s main arguments be? And the Globe\xe2\x80\x99s counterarguments?\n(b) What if Jaden wasn\xe2\x80\x99t prominent in Savannah\xe2\x80\x99s gay community and the only people who\nknew of his sexual orientation were members of his pickup basketball team?\n(c) What if Jaden isn\xe2\x80\x99t gay and is happily married to his high-school sweetheart, Cindy,\nwho\xe2\x80\x99s mortified about the Globe story?\n(d) Would it matter whether this incident happened during or after the era of \xe2\x80\x9cDon\xe2\x80\x99t Ask,\nDon\xe2\x80\x99t Tell,\xe2\x80\x9d a U.S. government directive that barred openly gay, lesbian, and bisexual\npeople from military service from 1994 to 2011?\n(e) The Globe argues that this sort of \xe2\x80\x9cspeculation\xe2\x80\x9d about the president\xe2\x80\x99s motivations\nconstitutes a \xe2\x80\x9cnewsworthy\xe2\x80\x9d fact. If the court agrees, does that give media outlets undue\npower to evade liability under this tort?\n(f) What other claims might Jaden bring? Is our next tort, defamation, a viable option?\n\nB. Defamation\nRESTATEMENT (SECOND) OF TORTS \xc2\xa7\xc2\xa7 558\xe2\x80\x93559, 564\xe2\x80\x93566\nInvasions of Interest in Reputation (1965)\nTo create liability for defamation there must be:\n(a)\n(b)\n(c)\n(d)\n\na false and defamatory statement concerning another;\nan unprivileged publication to a third party;\nfault amounting at least to negligence on the part of the publisher; and\n[harm].\n\nA communication is defamatory if it tends so to harm the reputation of another as to lower him\nin the estimation of the community or to deter third persons from associating or dealing with him\xe2\x80\xa6.\nA defamatory communication is made concerning the person to whom its recipient correctly, or\nmistakenly but reasonably, understands that it was intended to refer\xe2\x80\xa6.\nA defamatory communication may consist of a statement of fact\xe2\x80\xa6. [Or it] may consist of a\nstatement in the form of an opinion, but a statement of this nature is actionable only if it implies the\nallegation of undisclosed defamatory facts as the basis for the opinion.\n\n\x0c76\n\nTORT LAW\n\n1.\n\n2.\n\nQUESTIONS\nDefaming the Dead: Some tort claims can survive a person\xe2\x80\x99s death. Not so with\ndefamation. As Don Herzog observes in his 2017 book, Defaming the Dead: \xe2\x80\x9cAny\njournalist will assure you it\xe2\x80\x99s axiomatic that there\xe2\x80\x99s no such thing as defaming the dead.\nNot that it\xe2\x80\x99s impossible to publish false statements of fact that damage their reputations:\nnothing easier. Rather that once you\xe2\x80\x99re dead, tort law will not protect your reputation.\xe2\x80\x9d\nDoes this rule square with the goals of tort law? And is it consistent with the interests\nunderlying the tort of defamation? (Note the curious statute that appears unique to\nRhode Island: if you\xe2\x80\x99re defamed in an obituary within three months of your death, your\nestate may sue.)\nWrite No Evil, Speak No Evil, Do No Evil: Libel consists of publishing defamatory\nmatter by written or printed words, whereas slander usually involves defamation by\nspoken words. A person may even defame through gestures by using hand motions,\nfacial expressions, and other bodily movements to substitute for words. Some states also\npermit \xe2\x80\x9cdefamation by conduct\xe2\x80\x9d when a person\xe2\x80\x99s physical actions, though not intended\nto substitute for words, convey a defamatory message to anybody watching. Can you\nthink of examples of each type of defamation?\n\xc3\xa3\n\nThe following cases describe Black people using outdated language now considered offensive\nNEW YORK TIMES CO. v. SULLIVAN\nSupreme Court of Alabama (1962)\nHarwood, Justice:\nThis is an appeal from a judgment in the\namount of $500,000.00 awarded as damages in\na libel suit. The plaintiff below was L. B.\nSullivan, a member of the Board of\nCommissioners of the City of Montgomery,\nwhere he served as Police Commissioner. The\ndefendants below were The New York\nTimes\xe2\x80\xa6and four [civil-rights activists and\nassociates of Dr. Martin Luther King Jr.], Ralph\nD. Abernathy, Fred L. Shuttlesworth, S. S. Seay,\nSr., and J. E. Lowery. [The plaintiff\xe2\x80\x99s complaint\nalleged that the defendants published an\nadvertisement in the New York Times entitled \xe2\x80\x9cHeed Their Rising Voices\xe2\x80\x9d that contained \xe2\x80\x9cfalse and\ndefamatory matter or charges reflecting upon the conduct of the plaintiff\xe2\x80\xa6and imputing improper\n\n\xc3\xa3\n\nWela Quan, Torts 2.0 & Torts 2.2, NY Bar Picture Book (CC BY-NC-ND 4.0).\n\n\x0cCASES & CRITIQUE\n\n77\n\nconduct to him, and subjecting him to public contempt, ridicule and shame, and prejudicing the\nplaintiff in his office, profession, trade or business, with an intent to defame the plaintiff.\xe2\x80\x9d]\xe2\x80\xa6\nWe hold that the matter complained of is\xe2\x80\xa6libelous per se, if it was published of and concerning\nthe plaintiff\xe2\x80\xa6. The [trial] court did not err in overruling the demurrer\xe2\x80\xa6.\nIt is appellant\xe2\x80\x99s contention that refusal [to properly instruct the jury] contravenes Amendment\nOne of the United States Constitution and results in an improper restraint of freedom of the press\xe2\x80\xa6.\nIn argument in support of this assignment, counsel for appellant asserts that the advertisement was\nonly an appeal for support of King and \xe2\x80\x9cthousands of Southern Negro students\xe2\x80\x9d said to be \xe2\x80\x9cengaged\nin widespread non-violent demonstrations in positive affirmation of the right to live in human\ndignity as guaranteed by the U.S. Constitution and the Bill of Rights.\xe2\x80\x9d The fallacy of such argument\nis that it overlooks the libelous portions of the advertisement which are the very crux of this suit.\nThe First Amendment of the U.S. Constitution does not protect libelous publications\xe2\x80\xa6.\nCounsel have also argued\xe2\x80\xa6that error infects this record because, (1) the courtroom was\nsegregated during the trial below, and (2) the trial judge was not duly and legally elected because of\nalleged deprivation of voting rights to negroes. Neither of the above matters were presented in the\ntrial below, and cannot now be presented for review\xe2\x80\xa6.\n1.\n\nQUESTIONS\nCounting Chickens: After the U.S. Supreme Court agreed to review the Alabama\nSupreme Court\xe2\x80\x99s decision, legend has it that Sullivan asked his lawyer \xe2\x80\x9cCan they win?\xe2\x80\x9d\nand the lawyer replied \xe2\x80\x9cThe Supreme Court would have to change 200 years of libel law\nfor us to lose!\xe2\x80\x9d What do you think happened next?\nNEW YORK TIMES CO. v. SULLIVAN\nSupreme Court of the United States (1964)\n\nBrennan, Justice:\nWe are required in this case to determine for the\nfirst time the extent to which the constitutional\nprotections for speech and press limit a State\xe2\x80\x99s power\nto award damages in a libel action brought by a public\nofficial against critics of his official conduct.\nRespondent L. B. Sullivan\xe2\x80\xa6brought this civil libel\naction against the four individual petitioners, who are\nNegroes and Alabama clergymen, and against\npetitioner\nthe\nNew\nYork\nTimes\nCompany\xe2\x80\xa6. Respondent\xe2\x80\x99s complaint alleged that he\nhad been libeled by statements in a full-page\nadvertisement that was carried in the New York Times\non March 29, 1960. Entitled \xe2\x80\x9cHeed Their Rising\nVoices,\xe2\x80\x9d the advertisement began by stating that \xe2\x80\x9cAs\nthe whole world knows by now, thousands of Southern\nNegro students are engaged in widespread non-violent\ndemonstrations in positive affirmation of the right to\nlive in human dignity as guaranteed by the U.S.\nConstitution and the Bill of Rights.\xe2\x80\x9d It went on to\ncharge that \xe2\x80\x9cin their efforts to uphold these guarantees,\nthey are being met by an unprecedented wave of terror\nby those who would deny and negate that document\nwhich the whole world looks upon as setting the pattern for modern freedom.\xe2\x80\x9d\nSucceeding paragraphs purported to illustrate the \xe2\x80\x9cwave of terror\xe2\x80\x9d by describing certain alleged\nevents. The text concluded with an appeal for funds for three purposes: support of the student\nmovement, \xe2\x80\x9cthe struggle for the right-to-vote,\xe2\x80\x9d and the legal defense of Dr. Martin Luther King, Jr.,\nleader of the movement, against a perjury indictment then pending in Montgomery\xe2\x80\xa6.\n\n\x0c78\n\nTORT LAW\n\nOf the 10 paragraphs of text in the advertisement, the third and a portion of the sixth were the\nbasis of respondent\xe2\x80\x99s claim of libel. They read as follows:\nThird paragraph:\nIn Montgomery, Alabama, after students sang \xe2\x80\x98My Country, \xe2\x80\x98Tis of Thee\xe2\x80\x99 on the\nState Capitol steps, their leaders were expelled from school, and truckloads of police\narmed with shotguns and tear-gas ringed the Alabama State College Campus. When\nthe entire student body protested to state authorities by refusing to re-register, their\ndining hall was padlocked in an attempt to starve them into submission.\nSixth paragraph:\nAgain and again the Southern violators have answered Dr. King\xe2\x80\x99s peaceful protests\nwith intimidation and violence. They have bombed his home almost killing his wife\nand child. They have assaulted his person. They have arrested him seven times\xe2\x80\x94for\n\xe2\x80\x98speeding,\xe2\x80\x99 \xe2\x80\x98loitering\xe2\x80\x99 and similar \xe2\x80\x98offenses.\xe2\x80\x99 And now they have charged him with\n\xe2\x80\x98perjury\xe2\x80\x99\xe2\x80\x94a felony under which they could imprison him for ten years.\nAlthough neither of these statements mentions respondent by name, he contended that the word\n\xe2\x80\x9cpolice\xe2\x80\x9d in the third paragraph referred to him as the Montgomery Commissioner who supervised\nthe Police Department, so that he was being accused of \xe2\x80\x9cringing\xe2\x80\x9d the campus with police. He further\nclaimed that the paragraph would be read as imputing to the police, and hence to him, the\npadlocking of the dining hall in order to starve the students into submission. As to the sixth\nparagraph, he contended that since arrests are ordinarily made by the police, the statement \xe2\x80\x9cThey\nhave arrested [Dr. King] seven times\xe2\x80\x9d would be read as referring to him; he further contended that\nthe \xe2\x80\x9cThey\xe2\x80\x9d who did the arresting would be equated with the \xe2\x80\x9cThey\xe2\x80\x9d who committed the other\ndescribed acts and with the \xe2\x80\x9cSouthern violators.\xe2\x80\x9d Thus, he argued, the paragraph would be read as\naccusing the Montgomery police, and hence him, of answering Dr. King\xe2\x80\x99s protests with\n\xe2\x80\x9cintimidation and violence,\xe2\x80\x9d bombing his home, assaulting his person, and charging him with\nperjury. Respondent and six other Montgomery residents testified that they read some or all of the\nstatements as referring to him in his capacity as Commissioner.\nIt is uncontroverted that some of the\nstatements contained in the paragraphs\nwere not accurate descriptions of events\nwhich occurred in Montgomery.\nAlthough Negro students staged a\ndemonstration on the State Capitol steps,\nthey sang the National Anthem and not\n\xe2\x80\x9cMy Country, \xe2\x80\x98Tis of Thee.\xe2\x80\x9d Although\nnine students were expelled by the State\nBoard of Education, this was not for\nleading the demonstration at the Capitol, but for demanding service at a lunch counter in the\nMontgomery County Courthouse on another day\xe2\x80\xa6. Although the police were deployed near the\ncampus in large numbers on three occasions, they did not at any time \xe2\x80\x9cring\xe2\x80\x9d the campus, and they\nwere not called to the campus in connection with the demonstration on the State Capitol steps, as\nthe third paragraph implied. Dr. King had not been arrested seven times, but only four; and although\nhe claimed to have been assaulted some years earlier in connection with his arrest for loitering\noutside a courtroom, one of the officers who made the arrest denied that there was such an assault\xe2\x80\xa6.\nRespondent made no effort to prove that he suffered actual pecuniary loss as a result of the\nalleged libel. One of his witnesses, a former employer, testified that if he had believed the statements,\nhe doubted whether he \xe2\x80\x9cwould want to be associated with anybody who would be a party to such\nthings that are stated in that ad,\xe2\x80\x9d and that he would not re-employ respondent if he believed \xe2\x80\x9cthat\nhe allowed the Police Department to do the things that the paper say he did.\xe2\x80\x9d But neither this witness\n\xc3\xa3\n\n\xc3\xa3\n\nUS Department of State, Two Minute Warning (CC BY-NC 2.0).\n\n\x0cCASES & CRITIQUE\n\n79\n\nnor any of the others testified that he had actually believed the statements in their supposed reference\nto respondent\xe2\x80\xa6.\nAlabama law denies a public officer recovery of punitive damages in a libel action brought on\naccount of a publication concerning his official conduct unless he first makes a written demand for\na public retraction and the defendant fails or refuses to comply. Respondent served such a demand\nupon each of the petitioners. None of the individual petitioners responded to the demand, primarily\nbecause each took the position that he had not authorized the use of his name on the advertisement\nand therefore had not published the statements that respondent alleged had libeled him. The Times\ndid not publish a retraction in response to the demand, but wrote respondent a letter stating, among\nother things, that \xe2\x80\x9cwe are somewhat puzzled as to how you think the statements in any way reflect\non you,\xe2\x80\x9d and \xe2\x80\x9cyou might, if you desire, let us know in what respect you claim that the statements in\nthe advertisement reflect on you.\xe2\x80\x9d Respondent filed this suit a few days later without answering\xe2\x80\xa6.\nThe trial judge submitted the case to the jury under instructions that the statements in the\nadvertisement were libelous per se and were not privileged, so that petitioners might be held liable\nif the jury found that they had published the advertisement and that the statements were made \xe2\x80\x9cof\nand concerning\xe2\x80\x9d respondent. The jury was instructed that, because the statements were libelous per\nse, \xe2\x80\x9cthe law implies legal injury from the bare fact of publication itself,\xe2\x80\x9d \xe2\x80\x9cfalsity and malice are\npresumed,\xe2\x80\x9d \xe2\x80\x9cgeneral damages need not be alleged or proved but are presumed,\xe2\x80\x9d and \xe2\x80\x9cpunitive\ndamages may be awarded by the jury even though the amount of actual damages is neither found\nnor shown.\xe2\x80\x9d\xe2\x80\xa6 In affirming the judgment, the Supreme Court of Alabama sustained the trial judge\xe2\x80\x99s\nrulings and instructions in all respects. It held that \xe2\x80\x9cwhere the words published tend to injure a\nperson libeled by them in his reputation, profession, trade or business, or charge him with an\nindictable offense, or tend to bring the individual into public contempt,\xe2\x80\x9d they are \xe2\x80\x9clibelous per se.\xe2\x80\x9d\xe2\x80\xa6\nWe reverse the judgment. We hold that the rule of law applied by the Alabama courts is\nconstitutionally deficient for failure to provide the safeguards for freedom of speech and of the press\nthat are required by the First and Fourteenth Amendments in a libel action brought by a public\nofficial against critics of his official conduct\xe2\x80\xa6.\nUnder Alabama law as applied in this case, a publication is \xe2\x80\x9clibelous per se\xe2\x80\x9d if the words \xe2\x80\x9ctend\nto injure a person\xe2\x80\xa6in his reputation\xe2\x80\x9d or to \xe2\x80\x9cbring [him] into public contempt\xe2\x80\x9d; the trial court stated\nthat the standard was met if the words are such as to \xe2\x80\x9cinjure him in his public office, or impute\nmisconduct to him in his office, or want of official integrity, or want of fidelity to a public trust.\xe2\x80\x9d\nThe jury must find that the words were published \xe2\x80\x9cof and concerning\xe2\x80\x9d the plaintiff, but where the\nplaintiff is a public official his place in the governmental hierarchy is sufficient evidence to support\na finding that his reputation has been affected by statements that reflect upon the agency of which\nhe is in charge. Once \xe2\x80\x9clibel per se\xe2\x80\x9d has been established, the defendant has no defense as to stated\nfacts unless he can persuade the jury that they were true in all their particulars\xe2\x80\xa6. The question\nbefore us is whether this rule of liability, as applied to an action brought by a public official against\ncritics of his official conduct, abridges the freedom of speech and of the press that is guaranteed by\nthe first and Fourteenth Amendments.\nRespondent relies heavily, as did the Alabama courts, on statements of this Court to the effect\nthat the Constitution does not protect libelous publications\xe2\x80\xa6[, but none] of the cases sustained the\nuse of libel laws to impose sanctions upon expression critical of the official conduct of public\nofficials\xe2\x80\xa6. The general proposition that freedom of expression upon public questions is secured by\nthe First Amendment has long been settled by our decisions\xe2\x80\xa6.\nThus we consider this case against the background of a profound national commitment to the\nprinciple that debate on public issues should be uninhibited, robust, and wide-open, and that it may\nwell include vehement, caustic, and sometimes unpleasantly sharp attacks on government and\npublic officials. The present advertisement, as an expression of grievance and protest on one of the\nmajor public issues of our time, would seem clearly to qualify for the constitutional protection. The\nquestion is whether it forfeits that protection by the falsity of some of its factual statements and by\nits alleged defamation of respondent.\nAuthoritative interpretations of the First Amendment guarantees have consistently refused to\nrecognize an exception for any test of truth\xe2\x80\x94whether administered by judges, juries, or\nadministrative officials\xe2\x80\x94and especially one that puts the burden of proving truth on the speaker.\n\n\x0c80\n\nTORT LAW\n\nThe constitutional protection does not turn upon the truth, popularity, or social utility of the ideas\nand beliefs which are offered. As Madison said, \xe2\x80\x9cSome degree of abuse is inseparable from the proper\nuse of every thing; and in no instance is this more true than in that of the press.\xe2\x80\x9d 4 Elliot\xe2\x80\x99s Debates\non the Federal Constitution (1876)\xe2\x80\xa6. That erroneous statement is inevitable in free debate, and that\nit must be protected if the freedoms of expression are to have the \xe2\x80\x9cbreathing space\xe2\x80\x9d that they \xe2\x80\x9cneed\nto survive,\xe2\x80\x9d [has been widely recognized.]\nInjury to official reputation affords no more warrant for repressing speech that would otherwise be\nfree than does factual error\xe2\x80\xa6. This is true even though the utterance contains \xe2\x80\x9chalf-truths\xe2\x80\x9d and\n\xe2\x80\x9cmisinformation.\xe2\x80\x9d\xe2\x80\xa6 Criticism of [government actors\xe2\x80\x99] official conduct does not lose its constitutional\nprotection merely because it is effective criticism and hence diminishes their official reputations.\nIf neither factual error nor defamatory content suffices to remove the constitutional shield from\ncriticism of official conduct, the combination of the two elements is no less inadequate. This is the\nlesson to be drawn from the great controversy over the Sedition Act of 1798, which first crystallized\na national awareness of the central meaning of the First Amendment. That statute made it a crime,\npunishable by a $5,000 fine and five years in prison, \xe2\x80\x9cif any person shall write, print, utter or publish\nany false, scandalous and malicious writing or writings against the government of the United States,\nor either house of the Congress, or the President, with intent to defame or to bring them, or either\nof them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred\nof the good people of the United States.\xe2\x80\x9d The Act allowed the defendant the defense of truth\xe2\x80\xa6[but]\nwas vigorously condemned as unconstitutional in an attack joined in by Jefferson and Madison\xe2\x80\xa6.\nThe right of free public discussion of the stewardship of public officials was thus, in Madison\xe2\x80\x99s view,\na fundamental principle of the American form of government. Although the Sedition Act was never\ntested in this Court, the attack upon its validity has carried the day in the court of history\xe2\x80\xa6.\nWhat a State may not constitutionally bring about by means of a criminal statute is likewise\nbeyond the reach of its civil law of libel. The fear of damage awards under a rule such as that invoked\nby the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a\ncriminal statute\xe2\x80\xa6. Whether or not a newspaper can survive a succession of such judgments, the pall\nof fear and timidity imposed upon those who would give voice to public criticism is an atmosphere\nin which the First Amendment freedoms cannot survive.\nThe state rule of law is not saved by its allowance of the defense of truth\xe2\x80\xa6. A rule compelling\nthe critic of official conduct to guarantee the truth of all his factual assertions\xe2\x80\x94and to do so on pain\nof libel judgments virtually unlimited in amount\xe2\x80\x94leads to\xe2\x80\xa6\xe2\x80\x9cself-censorship.\xe2\x80\x9d Allowance of the\ndefense of truth, with the burden of proving it on the defendant, does not mean that only false speech\nwill be deterred. Even courts accepting this defense as an adequate safeguard have recognized the\ndifficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. Under\nsuch a rule, would-be critics of official conduct may be deterred from voicing their criticism, even\nthough it is believed to be true and even though it is in fact true, because of doubt whether it can be\nproved in court or fear of the expense of having to do so. They tend to make only statements which\nsteer far wider of the unlawful zone. The rule thus dampens the vigor and limits the variety of public\ndebate\xe2\x80\xa6. The constitutional guarantees require, we think, a federal rule that prohibits a public\nofficial from recovering damages for a defamatory falsehood relating to his official conduct unless\nhe proves that the statement was made with \xe2\x80\x9cactual malice\xe2\x80\x9d\xe2\x80\x94that is, with knowledge that it was false\nor with reckless disregard of whether it was false or not\xe2\x80\xa6.\nWe hold today that the Constitution delimits a State\xe2\x80\x99s power to award damages for libel in\nactions brought by public officials against critics of their official conduct. Since this is such an\naction, the rule requiring proof of actual malice is applicable\xe2\x80\xa6. [W]e consider that the proof\npresented to show actual malice lacks the convincing clarity which the constitutional standard\ndemands, and hence that it would not constitutionally sustain the judgment for respondent under\nthe proper rule of law. The case of the individual petitioners requires little discussion. Even assuming\nthat they could constitutionally be found to have authorized the use of their names on the\nadvertisement, there was no evidence whatever that they were aware of any erroneous statements or\nwere in any way reckless in that regard\xe2\x80\xa6.\nAs to the Times, we similarly conclude that the facts do not support a finding of actual malice.\nThe statement by the Times\xe2\x80\x99 Secretary that, apart from the padlocking allegation, he thought the\n\n\x0cCASES & CRITIQUE\n\n81\n\nadvertisement was \xe2\x80\x9csubstantially correct,\xe2\x80\x9d affords no constitutional warrant for the Alabama\nSupreme Court\xe2\x80\x99s conclusion that it was a \xe2\x80\x9ccavalier ignoring of the falsity of the advertisement from\nwhich the jury could not have but been impressed with the bad faith of The Times, and its\nmaliciousness inferable therefrom.\xe2\x80\x9d The statement does not indicate malice at the time of the\npublication; even if the advertisement was not \xe2\x80\x9csubstantially correct\xe2\x80\x9d\xe2\x80\x94although respondent\xe2\x80\x99s own\nproofs tend to show that it was\xe2\x80\x94that opinion was at least a reasonable one, and there was no\nevidence to impeach the witness\xe2\x80\x99 good faith in holding it\xe2\x80\xa6.\nWe also think the evidence was constitutionally defective in another respect: it was incapable of\nsupporting the jury\xe2\x80\x99s finding that the allegedly libelous statements were made \xe2\x80\x9cof and concerning\xe2\x80\x9d\nrespondent\xe2\x80\xa6. There was no reference to respondent in the advertisement, either by name or official\nposition. A number of the allegedly libelous statements\xe2\x80\x94the charges that the dining hall was\npadlocked and that Dr. King\xe2\x80\x99s home was bombed, his person assaulted, and a perjury prosecution\ninstituted against him\xe2\x80\x94did not even concern the police; despite the ingenuity of the arguments\nwhich would attach this significance to the word \xe2\x80\x9cThey,\xe2\x80\x9d it is plain that these statements could not\nreasonably be read as accusing respondent of personal involvement in the acts in question\xe2\x80\xa6.\nAlthough the statements may be taken as referring to the police, they did not on their face make\neven an oblique reference to respondent as an individual\xe2\x80\xa6.\nThe judgment of the Supreme Court of Alabama is reversed and the case is remanded to that\ncourt for further proceedings not inconsistent with this opinion\xe2\x80\xa6.\nBlack, Justice, concurring:\nI concur in reversing this half-million-dollar judgment against the New York Times Company\nand the four individual defendants\xe2\x80\xa6. I base my vote to reverse on the belief that the First and\nFourteenth Amendments not merely \xe2\x80\x9cdelimit\xe2\x80\x9d a State\xe2\x80\x99s power to award damages to \xe2\x80\x9cpublic officials\nagainst critics of their official conduct\xe2\x80\x9d but completely prohibit a State from exercising such a power.\nThe Court goes on to hold that a State can subject such critics to damages if \xe2\x80\x9cactual malice\xe2\x80\x9d can be\nproved against them. \xe2\x80\x9cMalice,\xe2\x80\x9d even as defined by the Court, is an elusive, abstract concept, hard to\nprove and hard to disprove. The requirement that malice be proved provides at best an evanescent\nprotection for the right critically to discuss public affairs and certainly does not measure up to the\nsturdy safeguard embodied in the First Amendment. Unlike the Court, therefore, I vote to reverse\nexclusively on the ground that the Times and the individual defendants had an absolute,\nunconditional constitutional right to publish in the Times advertisement their criticisms of the\nMontgomery agencies and officials\xe2\x80\xa6. In my opinion the Federal Constitution has dealt with this\ndeadly danger to the press in the only way possible without leaving the free press open to\ndestruction\xe2\x80\x94by granting the press an absolute immunity for criticism of the way public officials do\ntheir public duty\xe2\x80\xa6. We would, I think, more faithfully interpret the First Amendment by holding\nthat at the very least it leaves the people and the press free to criticize officials and discuss public\naffairs with impunity\xe2\x80\xa6.\nThis Nation, I suspect, can live in peace without libel suits based on public discussions of public\naffairs and public officials. But I doubt that a country can live in freedom where its people can be\nmade to suffer physically or financially for criticizing their government, its actions, or its officials\xe2\x80\xa6.\nAn unconditional right to say what one pleases about public affairs is what I consider to be the\nminimum guarantee of the First Amendment. I regret that the Court has stopped short of this\nholding indispensable to preserve our free press from destruction.\nGoldberg, Justice, concurring in the result:\n\xe2\x80\xa6In my view, the First and Fourteenth Amendments to the Constitution afford to the citizen\nand to the press an absolute, unconditional privilege to criticize official conduct despite the harm\nwhich may flow from excesses and abuses. The prized American right to speak one\xe2\x80\x99s mind about\npublic officials and affairs needs breathing space to survive\xe2\x80\xa6\nThe conclusion that the Constitution affords the citizen and the press an absolute privilege for\ncriticism of official conduct does not leave the public official without defenses against\nunsubstantiated opinions or deliberate misstatements. Under our system of government,\ncounterargument and education are the weapons available to expose these matters, not abridgment\n\n\x0c82\n\nTORT LAW\n\nof free speech. The public official certainly has equal if not greater access than most private citizens\nto media of communication\xe2\x80\xa6. As Mr. Justice Brandeis correctly observed, \xe2\x80\x9csunlight is the most\npowerful of all disinfectants.\xe2\x80\x9d\xe2\x80\xa6\n1.\n\nQUESTIONS\nMalicious Misnomer: Sullivan is famous for establishing \xe2\x80\x9cactual malice\xe2\x80\x9d as a\nconstitutional standard in defamation claims. Read the actual-malice standard carefully.\nMust the plaintiff show that the defendant was being cruel or intended to do harm? Does\nthe standard contain the biggest misnomer in constitutional law?\n\n2.\n\nSullivan\xe2\x80\x99s Creep: It didn\xe2\x80\x99t take long for the Court to extend the actual-malice standard\nto other prominent but non-governmental plaintiffs, starting with a university\xe2\x80\x99s athletic\ndirector in Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). The Court then flirted\nwith greater doctrinal expansion in Rosenbloom v. Metromedia, Inc., 403 U.S 29 (1971),\nwhen a plurality sought to apply the rule to all defamation claims involving speech on\nmatters of public concern, regardless of whether the plaintiff was a public or private\nfigure. This approach was rebuffed in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974),\nwhen the Court endorsed it for only public figures\xe2\x80\x94that is, any defamation plaintiff who\nhas \xe2\x80\x9cpervasive fame or notoriety\xe2\x80\x9d (general public figures) or who \xe2\x80\x9cvoluntarily injects\nhimself or is drawn into a particular public controversy\xe2\x80\x9d (limited-purpose public\nfigures). Notably, the Gertz Court mused ambiguously about another potential public\nfigure, observing that \xe2\x80\x9ctruly involuntary public figures must be exceedingly rare.\xe2\x80\x9d This\nremark has been prophetic: the Court hasn\xe2\x80\x99t encountered its mythical character in the\nforty years that have since passed. What should the rule be for those involuntarily thrust\ninto the limelight? Does the internet make public figures of us all? Note also the\nplurality\xe2\x80\x99s decision in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749\n(1985), holding that the actual-malice standard doesn\xe2\x80\x99t apply to \xe2\x80\x9cspeech on matters of\npurely private concern.\xe2\x80\x9d\n\n3.\n\nParty Poopers: Eminent First Amendment scholar Alexander Meiklejohn famously said\nthat the Sullivan decision was \xe2\x80\x9can occasion for dancing in the streets.\xe2\x80\x9d Nearly sixty years\nlater, do you still feel like partying? At least two current Supreme Court justices, it seems,\ndon\xe2\x80\x99t like the music. Berisha v. Lawson, 141 S. Ct. 2424 (2021) (Gorsuch, J., dissenting\nfrom the denial of certiorari) (urging reconsideration of Sullivan \xe2\x80\x9cgiven the momentous\nchanges in the Nation\xe2\x80\x99s media landscape since 1964\xe2\x80\x9d and the fact that \xe2\x80\x9cprivate citizens\ncan become \xe2\x80\x98public figures\xe2\x80\x99 on social media overnight\xe2\x80\x9d); McKee v. Cosby, 139 S. Ct. 675\n(2019) (Thomas, J., concurring in the denial of certiorari) (describing Sullivan and its\nprogeny as \xe2\x80\x9cpolicy-driven decisions masquerading as constitutional law\xe2\x80\x9d).\n\n\x0cCASES & CRITIQUE\n\n83\n\nPOTTER PROBLEM\nHarry Potter lives in Little\nWhinging at number four Privet\nDrive, the home of his aunt and\nuncle, Petunia and Vernon Dursley.\nOne summer day, Harry is out in the\ngarden and sees a pair of large eyes\nwatching him from the bushes\xe2\x80\x94the\neyes of Dobby the house-elf, a\nmagical servant belonging to the\nwicked Malfoy family. Over the\ncourse of the summer, Dobby has\nbeen intercepting all of Harry\xe2\x80\x99s owl post\xe2\x80\x94birthday cards and all\xe2\x80\x94in an attempt to keep Harry from\nreturning to Hogwarts School, where Dobby fears Harry will be in danger.\nOn the night of a special dinner at the Dursleys\xe2\x80\x99 home with Mr. and Mrs. Mason, Dobby creeps\nupstairs into Harry\xe2\x80\x99s bedroom. Harry invites him to sit down, leading Dobby to howl in distress.\nAfter refusing to return Harry\xe2\x80\x99s mail, Dobby makes enough noise to startle Uncle Vernon, who\ncomes upstairs, spitting with rage, and furiously yells at Harry to \xe2\x80\x9cshut it\xe2\x80\x9d or Harry would wish he\xe2\x80\x99d\n\xe2\x80\x9cnever been born.\xe2\x80\x9d After Uncle Vernon leaves, Dobby attempts to convince Harry not to go back to\nHogwarts. When Harry refuses and tells Dobby to leave before he gets Harry in trouble, Dobby runs\ndownstairs to the kitchen and levitates Aunt Petunia\xe2\x80\x99s glorious pudding before Harry\xe2\x80\x99s eyes, making\nHarry\xe2\x80\x99s stomach sink with dread. \xe2\x80\x9cNo,\xe2\x80\x9d pleads Harry, \xe2\x80\x9cthey\xe2\x80\x99ll kill me!\xe2\x80\x9d Dobby says he won\xe2\x80\x99t throw\nthe pudding if Harry promises to remain at the Dursleys\xe2\x80\x99 house during the upcoming school year.\nWhen Harry again refuses to swear that he won\xe2\x80\x99t return to Hogwarts, Dobby replies, \xe2\x80\x9cThen Dobby\nmust do it, sir, for Harry Potter\xe2\x80\x99s own good.\xe2\x80\x9d Dobby floats the pudding into the living room and, to\nthe Dursleys\xe2\x80\x99 shock, drops it on Mrs. Mason\xe2\x80\x99s hat, splattering the guests and walls with cream and\nshattering the dish. Uncle Vernon tells Harry that he\xe2\x80\x99s going to flay him to within an inch of his life\nwhen the Masons leave. An owl sent by Mafalda Hopkirk at the Ministry of Magic\xe2\x80\x99s Improper Use\nof Magic Office then flies into the living room and drops a letter on Mrs. Mason\xe2\x80\x99s head, making her\nscream like a banshee and run from the house. Mr. Mason storms out, telling the Dursleys that his\nwife is terrified of birds. An enraged Uncle Vernon locks Harry in his room, barely feeding him and\nletting him out only to use the bathroom.\nAfter not hearing from Harry all summer, Harry\xe2\x80\x99s friend Ron Weasley grows concerned. He and\nhis brothers, Fred and George, fly their father\xe2\x80\x99s magical car to Little Whinging. They tie ropes to the\nbars that Uncle Vernon has attached to Harry\xe2\x80\x99s bedroom window and dislodge the bars and part of\nthe window. Uncle Vernon storms into the bedroom, grabbing Harry\xe2\x80\x99s leg as he attempts to escape.\nHarry kicks out, sending his uncle flying backwards, and jumps into the car as it flies away.\n(a) What tort claims should be brought?\n(b) What counterarguments and defenses should be raised?\n(c) What factual uncertainties would need to be resolved?\n\n\x0c84\n\nTORT LAW\n\nCHAPTER\n\n4:\n\nNEGLIGENCE\n\nA. Injury\nThere are four basic elements to a negligence claim: injury, duty, breach, and cause. We start\nwith the simplest\xe2\x80\x94injury. Several types of harm can constitute injury under negligence law. One is\nbodily injury, meaning physical harm to your body. Another is property injury, such as damage to\nyour land, buildings, or possessions. Then there\xe2\x80\x99s economic injury, including loss of wealth. And\nfinally there\xe2\x80\x99s emotional injury, like any distress you experience caused by a tortious act.\nNote that the legal issue of injury is conceptually distinct from that of damages, though there\xe2\x80\x99s\ncertainly overlap between the two. Injury is an element that the plaintiff must satisfy in order to state\na viable negligence claim; only those plaintiffs alleging the right sort of injury caused by the\ndefendant\xe2\x80\x99s actions may proceed in litigating their case. Damages, by contrast, are the typical remedy\nthat tort law provides to those who establish injury and the remaining elements of negligence. You\ncan certainly receive damages for your injuries, but not all damages are designed to compensate you\nfor your injuries. We\xe2\x80\x99ll return to damages in Chapter 6. For now, consider the following case as an\nintroduction to injury and the remaining elements of a negligence claim.\nWALTER v. WAL-MART STORES, INC.\nSupreme Judicial Court of Maine (2000)\nCalkins, Justice:\n\n\xc3\xa3\n\nWal-Mart Stores, Inc. appeals from a judgment\xe2\x80\xa6following\na jury trial awarding damages to Antoinette Walter in the\namount of $550,000 for her claim of pharmacist malpractice\xe2\x80\xa6.\nI. FACTS\nWalter, an eighty-year-old resident of Rockland, was\ndiagnosed with a type of cancer which attacks the lymphatic\nsystem. Dr. Stephen Ross, Walter\xe2\x80\x99s treating physician and a\nboard-certified oncologist, termed her condition treatable with\nthe proper medication. Dr. Ross prescribed Chlorambucil, a chemotherapy drug, for Walter. On the\nprescription slip, he explicitly called for Chlorambucil, the generic name, because he feared that the\ndrug\xe2\x80\x99s brand name, Leukeran, could be confused with other drugs with similar trade names.\nWalter took the prescription for Chlorambucil to the pharmacy in the Wal-Mart store in\nRockland on May 7, 1997. Henry Lovin, a Maine licensed pharmacist and an employee of Wal-Mart,\nwas on duty at the pharmacy. Instead of giving Walter Chlorambucil, as called for in the\nprescription, Lovin gave her a different drug with the brand name of Melphalen. The generic name\nfor Melphalen is Alkeran. Lovin did not speak with Walter at the time he filled the prescription, but\nhe provided her with an information sheet which described the effects of Melphalen. Melphalen is\nalso a chemotherapy drug, but it is a substantially more powerful medication than Chlorambucil.\nMelphalen is typically given in smaller doses over shorter periods of time than is Chlorambucil, and\ndoctors monitor it more closely. Melphalen has a very toxic effect on the body, and it substantially\nsuppresses bone marrow. It has a longer life in the body than Chlorambucil, which means that any\nside effects from it last longer.\nTo the extent that Walter noticed that the information sheet and bottle label read Melphalen, it\ndid not make an impression on her. She assumed that the drug she had been given was the same as\nDr. Ross had prescribed, and she began taking the prescribed dosage. Within seven to ten days of\nstarting the drug treatment, Walter began to suffer from nausea and lack of appetite. When she\nreferred to the information sheet, Walter saw that such side effects are common for chemotherapy\ndrugs. She continued to take the Melphalen. During the third week after starting the medication\nWalter noticed bruises on her arms and legs, and during the fourth week she developed a skin rash\n\xc3\xa3\n\nMike Mozart, Walmart Pharmacy (CC BY 2.0).\n\n\x0cCASES & CRITIQUE\n\n85\n\non her arms and legs. Although the information sheet warned that bruises and rashes should prompt\na call to the doctor, Walter waited a few days before attempting to contact Dr. Ross.\nDr. Ross testified at trial that his notes indicated that Walter should have had blood tests two\nweeks after starting medication and that she was to have scheduled an appointment with him within\nfour weeks of beginning the medication. He also testified that because Chlorambucil is slow-acting,\nhe does not insist that his patients have blood tests done in fourteen days but only that they have\nblood work periodically. Walter testified that she understood she was to have a follow-up\nappointment with Dr. Ross in four weeks and blood tests sometime before that appointment.\nOn the twenty-third day after starting the medication, Walter had blood tests done. She\nattempted to reach Dr. Ross by phone to tell him about the side effects, but she was unsuccessful\nuntil June 3, 1997. On that day Dr. Ross told her that her blood levels were low and to stop taking\nthe medication immediately. He scheduled an appointment for June 5. Walter, however, was rushed\nto the hospital later in the day on June 3 when she suffered gastrointestinal bleeding. Following her\nemergency admission, Walter remained in the hospital five weeks and received numerous blood\ntransfusions. She suffered several infections, and a catheter was placed in her chest. The bruising\nand skin rash continued. For a period of time she was unable to eat because of bleeding gums and\nan infection in her mouth. Because of her weakened immune system, Walter\xe2\x80\x99s visitors could not\ncome within ten feet of her.\nPrior to receiving the Melphalen, Walter lived independently and was active. Following her\nhospital discharge on July 7, 1997, she was physically weak. She initially had to make daily trips to\nthe hospital and later went less frequently. She had to have additional transfusions after she left the\nhospital. Melphalen did have the effect of causing her cancer to go into remission. Walter\xe2\x80\x99s total\nmedical bills for her treatment came to $71,042.63.\nThe two-day jury trial was held in February 1999. Wal-Mart moved for judgment as a matter of\nlaw at the close of Walter\xe2\x80\x99s case on the grounds that she had failed to present expert testimony on\nthe standard of care by pharmacists, and the motion was denied. At the close of the evidence Walter\nmoved for a judgment as a matter of law, and the court granted Walter\xe2\x80\x99s motion concluding that she\nwas entitled to judgment on liability. During Walter\xe2\x80\x99s closing argument, Wal-Mart moved for a\nmistrial arguing that certain comments by Walter\xe2\x80\x99s counsel were improper, and the motion was\ndenied. The jury awarded Walter $550,000 in damages. Wal-Mart\xe2\x80\x99s post-trial motion for judgment\nas a matter of law or a new trial was denied. [Wal-Mart appealed.]\nII. WALTER\xe2\x80\x99S MOTION FOR JUDGMENT ON LIABILITY\n\xe2\x80\xa6The effect of the [trial] court\xe2\x80\x99s grant of Walter\xe2\x80\x99s motion was a determination, as a matter of\nlaw, that Wal-Mart had a duty to Walter which it breached; that breach caused Walter harm; and\nWalter was not negligent\xe2\x80\x94or if she was negligent, her negligence did not proximately cause her\nharm. The only issue left for the jury was the amount of damages caused by Wal-Mart\xe2\x80\x99s negligence\nand whether those damages should be reduced because of any action or inaction by Walter to take\nreasonable steps to reduce the extent of her injuries.\nA. Wal-Mart\xe2\x80\x99s Representations to the Jury\nWal-Mart argues that the court erred in granting Walter\xe2\x80\x99s motion for judgment as a matter of\nlaw because it should have submitted the issues of negligence, proximate cause, and comparative\nnegligence to the jury. Walter contends that Wal-Mart\xe2\x80\xa6admitted liability in its opening statement\nto the jury.1 Wal-Mart\xe2\x80\x99s opening statement admitted the error made by its pharmacist in filling the\n1\nWal-Mart\xe2\x80\x99s counsel began his opening statement by explaining the process of a lawsuit and why Wal-Mart denied\nliability in its answer [to Walter\xe2\x80\x99s complaint]. He then stated: \xe2\x80\x9cWhat I\xe2\x80\x99m here to tell you right now is since the filing of the\ncomplaint and filing of the answer, Wal-Mart has never denied responsibility for this incident. Never. Going back to what\nhappened. [Walter\xe2\x80\x99s attorney] and I are in substantial agreement in terms of what happened\xe2\x80\xa6. [We] have a difference of\nopinion as to what constitutes fair, reasonable and just compensation for Mrs. Walter. That\xe2\x80\x99s why we are here. We can\xe2\x80\x99t\nagree. It\xe2\x80\x99s as simple as that. We just can\xe2\x80\x99t agree on that issue. We need your help. It\xe2\x80\x99s not because we are blaming Mrs. Walter.\nIt\xe2\x80\x99s not because we are trying to deflect blame. And it\xe2\x80\x99s not because we are trying to sort of make the issues obscure or\ndistracting. We are going to put all the cards on the table. There are no secrets. There are no major disputes as to what\noccurred\xe2\x80\xa6. The hardest issue and the one that is going to be in your laps at the end of tomorrow is what monetary amount\nrepresents fair and just compensation for Mrs. Walter? You will be asked to consider medical bills and what she went through\n\n\x0c86\n\nTORT LAW\n\nprescription but because negligence consists of both law (whether a duty exists and what that duty\nis) and facts (whether the duty was breached), there was no\xe2\x80\xa6admission of negligence. Furthermore,\nthe statement taken in its entire context, does not contain an unequivocal admission that the mistake\nin filling the prescription caused Walter\xe2\x80\x99s harm\xe2\x80\xa6.\nB. Wal-Mart\xe2\x80\x99s Negligence\nWalter had the burden to prove that Wal-Mart, through its pharmacist employee, owed a duty\nto Walter that it breached, thereby causing her harm. In Tremblay v. Kimball, 77 A. 405 (Me.\n1910), we held that pharmacists owe their customers a duty of ordinary care, but that \xe2\x80\x9cordinary care\xe2\x80\x9d\nfor a pharmacist means that \xe2\x80\x9cthe highest practicable degree of prudence, thoughtfulness, and\nvigilance and the most exact and reliable safeguards\xe2\x80\x9d must be taken.\nLovin, the Wal-Mart pharmacist, readily admitted that he made an error in filling Walter\xe2\x80\x99s\nprescription. He testified that he thought that the brand name for Chlorambucil was Alkeran, and\nhe filled the prescription with Alkeran, which is Melphalen. Lovin said that he made a \xe2\x80\x9cserious error\xe2\x80\x9d\nthat did not \xe2\x80\x9csatisfy the proper standard of care for a pharmacist.\xe2\x80\x9d He admitted that he would have\ndiscovered the error if he had followed the standard four-step process utilized to check for errors.\nHe acknowledged that to comply with the standard of pharmacy care he should have checked the\nstock bottle against the prescription. He further admitted that the standard of practice required that\nhe counsel Walter when she picked up the prescription, at which time he would have showed her\nthe drug and discussed it with her. He testified that he did not counsel her, but if he had done so, he\nwould have discovered the error. He also said that Walter would have no reason to suspect that she\nwas given the wrong drug.\nPursuant to the standard of \xe2\x80\x9cthe highest practicable degree of prudence, thoughtfulness, and\nvigilance and the most exact and reliable safeguards\xe2\x80\x9d\xe2\x80\xa6, Lovin\xe2\x80\x99s testimony established that the\nstandard was breached. Even if we were to determine that the standard of practice for pharmacists\nis the skill and diligence exercised by similar professionals, Lovin\xe2\x80\x99s testimony established that\nstandard and the breach of it. None of this evidence was disputed. A jury, acting reasonably, could\nnot have found that Wal-Mart was not negligent.\nC. Causation\nIn order to establish liability a plaintiff in any negligence action must show that the defendant\xe2\x80\x99s\nnegligence was the\xe2\x80\xa6cause of the plaintiff\xe2\x80\x99s harm. Wal-Mart argues that Walter\xe2\x80\x99s motion should\nhave been denied because she failed to prove that Wal-Mart\xe2\x80\x99s negligence in filling the prescription\nwas the cause of her injury. Causation means that there be some reasonable connection between the\nact or omission of the defendant and the damage which the plaintiff has suffered\xe2\x80\xa6.\nThere was uncontroverted medical evidence that Melphalen, which Wal-Mart provided Walter\nerroneously, caused damage to her body\xe2\x80\xa6. Dr. Ross testified that the Melphalen made Walter\nseriously ill, to the point that he was not sure she would survive, and that her lack of energy after her\nrelease from the hospital was the result of the illness caused by the wrong medication. Wal-Mart\xe2\x80\x99s\nexpert oncologist also testified that the side effects of Melphalen caused the lengthy hospitalization,\nand the hospitalization itself likely caused Walter\xe2\x80\x99s malaise and depression after her discharge.\nWal-Mart[\xe2\x80\x99s]\xe2\x80\xa6expert speculated that if a blood test had been done fourteen days after starting\nthe medication it might have shown lowered blood levels and, depending on how low those levels\nwere, Walter\xe2\x80\x99s physician might have stopped the medication, and if the medication had been\nstopped sooner, the harmful effect may have been less. Wal-Mart\xe2\x80\x99s expert did not testify that there\nwould have been no damage if a blood test had been done on the fourteenth day. In fact, in his\n\nduring the hospitalization and what she has done [sic] through since then. Wal-Mart is here, and I\xe2\x80\x99m here to ask you as the\nconscience of the community what that figure is. That\xe2\x80\x99s really why we are here\xe2\x80\xa6. The evidence in this case will show\nthat\xe2\x80\xa6Mr. Lovin was given a prescription for Chlorambucil. What came to his mind was Alkeran. And from there the mistake\nwas made. And it was sort of on a path of not being able being [sic] corrected in his mind. He was confident that Chlorambucil\nwas Alkeran. It was a mistake. And it\xe2\x80\x99s a mistake for which he\xe2\x80\x99s deeply sorry. But that\xe2\x80\x99s irrelevant. The fact is that a mistake\nwas made. That he didn\xe2\x80\x99t realize it at the time and wasn\xe2\x80\x99t told of the mistake until June 3rd when he received a call from Dr.\nRoss\xe2\x80\xa6. I would ask you to keep your eye on the target: fair and just and reasonable compensation. That\xe2\x80\x99s going to be the\nissue that you will have to decide when you go into the jury room at the end of the evidence.\xe2\x80\x9d\n\n\x0cCASES & CRITIQUE\n\n87\n\ndescription of Melphalen, he noted it has a long life in the body and that its side effects last longer.2\n\xe2\x80\xa6 No reasonable factfinder could have found that Wal-Mart\xe2\x80\x99s negligent act in misfilling the\nprescription was not a substantial cause in bringing about Walter\xe2\x80\x99s suffering. When the totality of\nthe evidence adduced in any particular case is so overwhelming that it leaves open to a factfinder,\nacting rationally, only one conclusion on the issue, the issue is then determined as a matter of law.\nThe trial court did not err in granting judgment as a matter of law to Walter on the issue of causation.\nD. Comparative Negligence and Mitigation of Damages\n\xe2\x80\xa6Under Maine\xe2\x80\x99s comparative negligence statute, the damages owing to a plaintiff may be\nreduced when the plaintiff\xe2\x80\x99s harm is partly the result of the plaintiff\xe2\x80\x99s own fault, and fault is defined\nas the negligence that would give rise to the defense of contributory negligence. If the plaintiff\xe2\x80\x99s fault\nis equal to or greater than that of the defendant, the plaintiff cannot recover damages\xe2\x80\xa6.\n[Wal-Mart argued that the trial judge erred by failing to instruct the jury to consider whether\nWalter was at fault for not realizing that she had been given the wrong prescription when she first\nreceived it. Wal-Mart argued that the jury, had it received this instruction, might have assigned some\nfault to Walter and reduced or eliminated her damages. Because] Lovin testified that Walter \xe2\x80\x9cwould\nhave no way of knowing\xe2\x80\x9d that she had been given the wrong medication, and there was no evidence\nthat Walter should have been expected to discover Wal-Mart\xe2\x80\x99s negligence[, there was no basis for\nassigning Walter fault. Therefore, the trial court did not err in refusing to give that instruction.]\xe2\x80\xa6\nWal-Mart [also argues that the jury should have been instructed to consider whether] Walter\xe2\x80\x99s\ndelay in calling her doctor to report the skin rash and bruising was negligence on her part that\ncontributed to her suffering. [Another instruction on the calculation of damages was sufficient to\ninform the jury that it could reduce Walter\xe2\x80\x99s damages if they believed her to be at fault, so there was\nno error in refusing to give Wal-Mart\xe2\x80\x99s preferred instruction.]\xe2\x80\xa6\nIII. WAL-MART\xe2\x80\x99S MOTION FOR JUDGMENT AS A MATTER OF LAW\nWal-Mart moved for judgment as a matter of law on the ground that Walter failed to present\nany expert evidence on the pharmacist\xe2\x80\x99s standard of care. It points out that Lovin was not designated\nas an expert. In this case the testimony of an expert was not necessary. We have said that where\nprofessional negligence and its harmful results are sufficiently obvious as to lie within common\nknowledge no expert testimony is necessary. The negligence of the pharmacist and the harmful\nresults were sufficiently obvious to be within the common knowledge of a lay person. It does not\ntake an expert to know that filling a prescription with the wrong drug and failing to take the steps in\nplace in that pharmacy to check for the wrong drug is negligence.\nIV. WAL-MART\xe2\x80\x99S MOTION FOR MISTRIAL\nWal-Mart moved for a mistrial because of three comments made by Wal-Mart\xe2\x80\x99s counsel during\nclosing argument. First, Walter\xe2\x80\x99s attorney stated that the pharmacist attempted to accept\nresponsibility but his employer, Wal-Mart, refused to accept responsibility for Walter\xe2\x80\x99s injury. WalMart objected, and the objection was sustained. The court admonished counsel that the only issue\nwas damages and told the jury that they were not to be swayed by any bias or predisposition towards\none party or the other. Second, Walter\xe2\x80\x99s counsel said that Walter was sent home \xe2\x80\x9cnot with the smilely\nface as we hear about at Wal-Mart\xe2\x80\xa6but with a bottle of poison\xe2\x80\xa6a bottle of medication that was not\nmeant for her.\xe2\x80\x9d Wal-Mart objected and moved for a mistrial. The motion was denied, and the judge\ntold the jurors that the issue was damages. Third, while referring to the amount of damages the jury\ncould award, during rebuttal, Walter\xe2\x80\x99s counsel told the jury it should consider how much money\nprofessional basketball players are paid. Wal-Mart objected and the objection was sustained. WalMart argues that the effect of the three comments was to prejudice the jury against Wal-Mart so that\nit would punish Wal-Mart by the amount of damages.\n\n2\nThe blood tests alone did not reveal that the wrong medication had been given. Dr. Ross did not discover that she was\ntaking the wrong medication until after she was admitted to the hospital.\n\n\x0c88\n\nTORT LAW\n\nWe review a refusal to grant a motion for a mistrial for abuse of discretion. The judge sustained\nthe objections to the comments, told the jurors to ignore the comments, and gave curative\ninstructions. The trial judge did not abuse his discretion\xe2\x80\xa6.\nV. WAL-MART\xe2\x80\x99S MOTION FOR NEW TRIAL\nAfter the verdict Wal-Mart moved for a new trial\xe2\x80\xa6. Wal-Mart\xe2\x80\xa6contends that the damages\nwere excessive and the size of the verdict demonstrates that the judge and jury were biased against\nWal-Mart. When a court refuses to grant a new trial on the ground of an excessive damage award,\nthe ruling will not be reversed except for clear and manifest abuse of discretion\xe2\x80\xa6.\nWalter\xe2\x80\x99s total medical bills and expenses equaled $71,042.63. The jury awarded Walter $550,000\nin damages. Presumably, the additional $479,000 of Walter\xe2\x80\x99s recovery is in compensation for her\npain and suffering. The jury heard several witnesses, including Walter herself, testify about the\npainful treatment she received in the hospital, the long recovery process, and the continuing\ndifficulties she faces. In light of this evidence, which must be considered favorably to Walter, the\njury\xe2\x80\x99s award of damages is rational. Although the verdict may seem large, it reflects the considered\nopinion of the jury within the range of evidence of sufficient probative character\xe2\x80\xa6.\n1.\n\nQUESTIONS\nLet the Master Answer: Is Walter suing Wal-Mart because she claims that the company\nitself was negligent? Do you think Wal-Mart changed its corporate policies after the\nlawsuit? Should it?\n\n2.\n\nRisky Business: Justice Wathen concurred in the court\xe2\x80\x99s judgment, but he and two\ncolleagues reached the result on different grounds to Justice Calkins: \xe2\x80\x9cIn my judgment,\ndefense counsel in this case admitted liability in his opening statement when he told the\njury that Wal-Mart had never denied liability and that the only issue concerned the\namount of fair and just compensation. Having made that statement, he then sought to\ntry the issue of liability behind the jurors\xe2\x80\x99 backs. To countenance such a strategy would\nbe to ignore the requirement of the Maine Bar Rules that trial counsel employ \xe2\x80\x98such\nmeans only as are consistent with truth, and shall not seek to mislead the jury by any\nartifice or false statement of fact or law.\xe2\x80\x99\xe2\x80\x9d Are you on Team Wathen or Team Calkins?\nAnd, perhaps more importantly, what do you think Wal-Mart\xe2\x80\x99s lawyer was up to with\nthis risky strategy? Was this lawyering at its finest or worst?\n\n3.\n\nSuperbad: Is Lovin a bad guy? Is it fair to hold him responsible? Would the opposite\nresult be fair?\n\nG.O.A.T. PROBLEM\nMilan Petrovic is one of the world\xe2\x80\x99s top tennis players (perhaps even the greatest of all time,\ndepending on who you ask). During the North American Open tennis tournament, he encountered\na surprisingly talented challenger in the opening round. After Petrovic fell behind in the first set, he\nstruck an extra ball towards the back of the court in frustration. Unfortunately for Petrovic, the ball\nhappened to hit a line judge, Carmen Garcia, in the neck. Garcia crouched to the ground, holding\nher neck until medics arrived to evaluate her injury. Though she wasn\xe2\x80\x99t severely injured, she did\nexperience pain, swelling, and bruising on her neck after the incident. She now wants to sue Petrovic,\nbut she\xe2\x80\x99s not sure which claims, if any, would be likely to succeed.\n(a) How would you advise Garcia to proceed? Are there any claims worth pursuing?\n(b) What questions would you ask Garcia in order to discover details that might be\nimportant to the viability of any claims?\n\n\x0cCASES & CRITIQUE\n\n89\n\nB. Duty\nMUSSIVAND v. DAVID\nSupreme Court of Ohio (1989)\nResnick, Justice:\n\n\xc3\xa3\n\n[Dr. Tofigh Mussivand (right) sued Dr. George David for injuries\nallegedly stemming from sexual relations between David and Dr. Dixie\nWest, who was Mussivand\xe2\x80\x99s wife at the time. Mussivand claimed David\ninfected West with venereal warts, which West then transmitted to\nMussivand. Mussivand argued that David was negligent in having sex with\nWest without telling her about his infection or failing to take precautions to\navoid infecting her. David responded by filing a motion to dismiss, arguing\nthat he did not owe Mussivand a duty of care. The trial court granted the\nmotion, but the first appellate court reversed that decision.] This case comes\nto us on a dismissal of a complaint for failure to state a cause of action\xe2\x80\xa6.\nIt long has been held that one who has a contagious disease must take the\nnecessary steps to prevent the spread of the disease. This standard of care has been imposed by the courts\nin cases concerning the spread of communicable diseases such as tuberculosis\xe2\x80\xa6. A similar standard of\ncare exists for preventing the spread of a venereal disease. In Duke v. Housen, 589 P.2d 334 (Wyo.\n1979), the plaintiff alleged that her former paramour was grossly negligent when he infected her with\ngonorrhea\xe2\x80\xa6. [T]he court held that \xe2\x80\x9cone who negligently exposes another to an infectious or contagious\ndisease, which such other person thereby contracts, can be held liable in damages for his actions.\xe2\x80\x9d\nRecently several jurisdictions have allowed tort actions for negligent\xe2\x80\xa6transmission of genital\nherpes where the person infected with genital herpes fails to disclose to his or her sexual partner that\nhe or she is infected with such a disease\xe2\x80\xa6. In other words, people with a venereal disease have a\nduty to use reasonable care to avoid infecting others with whom they engage in sexual conduct\xe2\x80\xa6.\nOur research reveals, however, that [prior] cases differ from the cause before us in one very\nimportant aspect: that is, appellee [Mussivand] herein alleges that appellant [David] owed him a\nduty even though appellee was not appellant\xe2\x80\x99s sexual partner and had no direct sexual contact with\nappellant. The issue which we must decide in this case, therefore, is what duty, if any, does a person\ninfected with a venereal disease owe to the spouse of his paramour. Determining whether a duty\nexists is crucial since a person\xe2\x80\x99s failure to exercise ordinary care in doing or failing to do something\nwill not amount to actionable negligence unless such person owed to someone injured by such\nfailure a duty to exercise such ordinary care\xe2\x80\xa6.\nThe existence of a duty in a negligence action is a question of law for the court to\ndetermine. There is no formula for ascertaining whether a duty exists. Duty is the court\xe2\x80\x99s expression\nof the sum total of those considerations of policy which lead the law to say that the particular plaintiff\nis entitled to protection. Any number of considerations may justify the imposition of duty in\nparticular circumstances, including the guidance of history, our continually refined concepts of\nmorals and justice, the convenience of the rule, and social judgment as to where the loss should fall.\nThe common-law duty of due care is that degree of care which an ordinarily reasonable and\nprudent person exercises, or is accustomed to exercising, under the same or similar circumstances.\nA person is to exercise that care necessary to avoid injury to others.\nA person who has a venereal disease does not have the duty to disclose his condition to everyone.\nAs has been stated, \xe2\x80\x9c[i]t should be made clear that this court is not stating here that herpes victims\nhave a specific duty to warn any person of their condition; however, they, like all citizens, are to be\nguided by those considerations which ordinarily regulate the conduct of human affairs, and they\nmay be sued in this state for negligence in the omission to do something which a reasonable person\nwould do.\xe2\x80\x9d Long v. Adams, 333 S.E. 2d 852 (Ga. Ct. App. 1985).\nWe find the reasoning of these other jurisdictions persuasive and accordingly hold that a person\nwho knows, or should know, that he or she is infected with a venereal disease has the duty to abstain\n\n\xc3\xa3\n\nTom Simpson, Kay Mansion M.D. (CC BY-NC 2.0).\n\n\x0c90\n\nTORT LAW\n\nfrom sexual conduct or, at the minimum, to warn those persons with whom he or she expects to\nhave sexual relations of his or her condition.\nThere is a strong public policy behind imposition of this duty. In general, we are reminded that\nthe health of the people is an economic asset. The law recognizes its preservation as a matter of\nimportance to the state. To the individual nothing is more valuable than health. The laws of this\nstate have been framed to protect the people, collectively and individually, from the spread of\ncommunicable diseases. More specifically, we recognize that venereal diseases are often serious, and,\nin some instances, there is no known cure for them. Transmission of a venereal disease is generally\nthrough sexual contact. The likelihood that one will contract a venereal disease from someone\ninfected with such a disease is often high.\nFurthermore, there is statutory support for this duty. R.C. 3701.81(A) states: \xe2\x80\x9cNo person,\nknowingly or having reasonable cause to believe that he is suffering from a dangerous, contagious\ndisease, shall knowingly fail to take reasonable measures to prevent exposing himself to other\npersons, except when seeking medical aid.\xe2\x80\x9d\xe2\x80\xa6\nAppellant argues, however, that while he may have had a duty to appellee\xe2\x80\x99s wife to disclose his\ncondition, this duty does not extend to appellee. The existence of a duty will depend on the\nforeseeability of the injury to appellee. The test for foreseeability is whether a reasonably prudent\nperson would have anticipated that an injury was likely to result from the performance or\nnonperformance of an act. Thus whether appellant owed appellee a duty turns on whether a\nreasonably prudent person would have anticipated that appellee would be injured by way of\nappellant\xe2\x80\x99s alleged negligence. In this case appellant, allegedly infected with a venereal disease,\nengaged in sexual relations with a married woman. A reasonably prudent person would anticipate\nthat a wife and husband will engage in sexual relations. In addition, Dr. David is a medical doctor\nwho, more than most people, should be aware of the method of transmitting a venereal disease, its\nlikelihood of spreading through sexual contact, and its potentially devastating effect. If one\nnegligently exposes a married person to a sexually transmissible disease without informing that\nperson of his exposure, it is reasonable to anticipate that the disease may be transmitted to the married\nperson\xe2\x80\x99s spouse. Hence liability to a third party for failure to disclose to the original sexual partner\nturns on whether, under all the circumstances, injury to the third-party spouse was foreseeable\xe2\x80\xa6.\nWe do not, however, mean to say that appellant, subsequent to his affair with appellee\xe2\x80\x99s wife,\nwill be liable to any and all persons with whom she may have sexual contact. A spouse, however, is\na foreseeable sexual partner. Furthermore, the liability of a person with a sexually transmissible\ndisease to a third person, such as a spouse, would be extinguished as soon as the paramour spouse\nknew or should have known that he or she was exposed to or had contracted a venereal disease. She\nor he then would become a conscious and responsible agency which could or should have eliminated\nthe hazard. For example, if appellant told appellee\xe2\x80\x99s wife he had a venereal disease or if she noticed\nsymptoms of the disease on herself, she then would have the duty to abstain from sexual relations\nor warn her sexual partner. Whether appellee\xe2\x80\x99s wife knew, or should have known, of her exposure\nto a venereal disease is a question of fact to be decided by the trier of fact\xe2\x80\xa6. Accordingly, the trial\ncourt erred in granting appellant\xe2\x80\x99s motion to dismiss\xe2\x80\xa6the negligence cause of action.\n1.\n\n2.\n\nQUESTIONS\nIn Sickness and in Health: The court purportedly rests its conclusion on the fact that a\nspouse is a foreseeable sexual partner, especially to a paramour. Is this true? Should the\ncourt have cited data on sexual intimacy between married couples? Or conducted\nfactfinding on Dixie and Tofigh\xe2\x80\x99s sex life? What if Dixie had told George that she and\nTofigh no longer shared a marital bed? What if Dixie and Tofigh called each other\n\xe2\x80\x9chubby\xe2\x80\x9d and \xe2\x80\x9cwifey\xe2\x80\x9d but had never got around to filing marriage paperwork? How much\nwork is foreseeability really doing in the analysis?\nDischarging Duties: George could\xe2\x80\x99ve \xe2\x80\x9cextinguished\xe2\x80\x9d his liability by warning Dixie of his\ninfection or, presumably, abstaining from sex altogether. Is there anything else he\ncould\xe2\x80\x99ve done to discharge his duty? Would wearing a condom have sufficed?\n\n\x0cCASES & CRITIQUE\n\n3.\n\n91\n\nNMP: According to the court, George is off the hook if the jury finds that Dixie should\nhave suspected her exposure to a venereal disease. Why is that the rule? Why shouldn\xe2\x80\x99t\nthey both be on the hook for as long as Tofigh was in the dark?\nOSTERLIND v. HILL\nSupreme Judicial Court of Massachusetts (1928)\n\nBraley, Justice:\n\n\xc3\xa3\n\nThis is an action of tort brought by the plaintiff\nas administrator of the estate of Albert T. Osterlind\nto recover damages for the conscious suffering and\ndeath of his intestate. There are four counts in the\noriginal declaration and five counts in the amended\ndeclaration to each of which the defendant\ndemurred. The first count of the original\ndeclaration alleges, that on or about July 4, 1925, the\ndefendant was engaged in the business of letting for\nhire pleasure boats and canoes to be used on Lake\nQuannapowitt in the town of Wakefield; that it was\nthe duty of the defendant to have a reasonable\nregard for the safety of the persons to whom he let\nboats and canoes; that the defendant in the early morning of July 4, 1925, in wilful, wanton, or\nreckless disregard of the natural and probable consequences, let for hire to the intestate and one\nRyan a frail and dangerous canoe, well knowing that the intestate and Ryan were then intoxicated,\nand were then manifestly unfit to go upon the lake in the canoe; that, in consequence of the\ndefendant\xe2\x80\x99s wilful, wanton, or reckless disregard of his duties, the intestate and Ryan went out in the\ncanoe which shortly afterwards was overturned and the intestate after hanging to it for\napproximately one half hour, and making loud calls for assistance, which calls the defendant heard\nand utterly ignored, was obliged to release his hold, and was drowned; that in consequence of the\ndefendant\xe2\x80\x99s wilful, wanton, or reckless conduct, the intestate endured great conscious mental\nanguish and great conscious physical suffering from suffocation and drowning. Count two differs\nmaterially from count one only in so far as negligent conduct is alleged as distinguished from wilful,\nwanton, or reckless conduct\xe2\x80\xa6. The amended declaration adds allegations to the effect that the\nplaintiff\xe2\x80\x99s intestate and Ryan were intoxicated and incapacitated to enter into any valid contract or\nto exercise any care for their own safety and that the condition of the intestate was involuntary and\ninduced through no fault of his own.\nThe trial court sustained demurrers to both the original and amended declarations and reported\nthe case for determination by this court\xe2\x80\xa6.\nThe declaration must set forth facts which, if proved, establish the breach of a legal duty owed\nby the defendant to the intestate\xe2\x80\xa6. In the case at bar, however, it is alleged in every count of the\noriginal and amended declaration that after the canoe was overturned the intestate hung to the canoe\nfor approximately one half hour and made loud calls for assistance. On the facts stated in the\ndeclaration the intestate was not in a helpless condition. He was able to take steps to protect himself.\nThe defendant violated no legal duty in renting a canoe to a man in the condition of the\nintestate\xe2\x80\xa6. In view of the absence of any duty to refrain from renting a canoe to a person in the\ncondition of the intestate, the allegations of involuntary intoxication relating as they do to the issues\nof contributory negligence become immaterial. The allegations of wilful, wanton or reckless conduct\nalso add nothing to the plaintiff\xe2\x80\x99s case. The failure of the defendant to respond to the intestate\xe2\x80\x99s\noutcries is immaterial. No legal right of the intestate was infringed. The allegation common to both\ndeclarations that the canoe was \xe2\x80\x9cfrail and dangerous\xe2\x80\x9d appears to be a general characterization of\ncanoes. It is not alleged that the canoe was out of repair and unsafe\xe2\x80\xa6.\n\xc3\xa3\n\nForest History Society, Fishing from Canoe with Barbless Hook (CC BY-NC 2.0).\n\n\x0c92\n\nTORT LAW\n\n1.\n\nQUESTIONS\nCouldn\xe2\x80\x99t Care Less: Negligence can have various flavors. A plaintiff might claim, for\nexample, that a company was careless in hiring or training an employee, or that a\ndoctor\xe2\x80\x99s botched surgery constituted medical malpractice, or that a shopkeeper\xe2\x80\x99s failure\nto clean up spilled milk gave rise to premises liability. There are two distinct forms of\nnegligence alleged in Osterlind. Can you spot them?\n\n2.\n\nBlackout: If Osterlind had been blind drunk, should this case come out differently? Why?\n\n3.\n\nBad Samaritans: Though subject to important exceptions, there\xe2\x80\x99s generally no\naffirmative duty to protect or rescue under tort law. To quote Restatement \xc2\xa7 314: \xe2\x80\x9cThe\nfact that the actor realizes or should realize that action on his part is necessary for\nanother\xe2\x80\x99s aid or protection does not of itself impose upon him a duty to take such\naction.\xe2\x80\x9d Does this rule mean we\xe2\x80\x99re bad people? What are the best justifications for this\nlegal doctrine?\nBAKER v. FENNEMAN & BROWN PROPERTIES, LLC\nCourt of Appeals of Indiana (2003)\n\nMay, Judge:\n\n\xc3\xa3\n\nAaron Baker appeals the trial court\xe2\x80\x99s grant of summary\njudgment to\xe2\x80\xa6Taco Bell\xe2\x80\xa6. Baker raises one issue, which we\nrestate as whether Taco Bell has a duty to assist a customer\nwho falls to the floor and loses consciousness when the\ncustomer\xe2\x80\x99s fall was not due to any fault of Taco Bell\xe2\x80\xa6.\nOn August 26, 1999, Baker entered the Taco Bell store in\nNewburgh, Indiana, to purchase a soft drink. Upon entering\nthe store, Baker felt nauseous, but he continued to the\ncounter, where he ordered a drink. Baker handed the cashier\nmoney for the drink and suddenly fell backward. Baker\xe2\x80\x99s\nhead hit the floor, and he was knocked unconscious and began having convulsions.1\nBaker and Taco Bell disagree regarding whether Taco Bell rendered assistance to Baker. Baker\nclaims that when he regained consciousness, he was staring at the ceiling, he had no idea what was\ngoing on, and he did not know where he was. He claims that no Taco Bell employee called for\nmedical assistance or helped him in any way. Taco Bell claims that the cashier walked around the\ncounter to Baker, where she waited for his convulsions to stop, and then she asked Baker if he was\nokay and if he needed an ambulance. The employee claims Baker said he was fine and he did not\nneed an ambulance, so she walked back around the counter.\nWhat happened next is undisputed. Moments after Baker stood up, he fell again. This time,\nBaker fell forward and was knocked unconscious. The fall lacerated his chin, knocked out his four\nfront teeth, and cracked the seventh vertebra of his neck. When Baker regained consciousness, he\nwas choking on the blood and teeth in his mouth. Baker stumbled out of the store to a friend, who\ncontacted Baker\xe2\x80\x99s fiance to take him to the hospital.\nBaker filed a complaint against Taco Bell, in which he alleged [that] Taco Bell breached its duty\nto render assistance to him until he could be cared for by others when Taco Bell employees knew or\nshould have known that he was ill or injured\xe2\x80\xa6. Baker sought damages for medical bills, lost wages,\npain and suffering, and mental anguish. Taco Bell moved for summary judgment, claiming it owed\nBaker no duty. Baker responded by arguing Taco Bell had a duty to help him\xe2\x80\xa6. The trial court\ngranted Taco Bell\xe2\x80\x99s motion. When we review a trial court\xe2\x80\x99s grant of summary judgment,\nwe\xe2\x80\xa6determine whether a genuine issue of material fact existed and whether the moving party was\nentitled to judgment as a matter of law\xe2\x80\xa6.\n\xc3\xa3\n\nMike Mozart, Taco Bell (CC BY 2.0).\nA doctor determined Baker fell because he experienced \xe2\x80\x9cvasovagal syncope.\xe2\x80\x9d Vasovagal syncope is a form of syncope\n(fainting) that occurs as a part of a normal physiologic response to stress (often emotional stress). The individual becomes\nlightheaded, nauseated, flushed, feels warm and then may lose consciousness for several seconds.\n1\n\n\x0cCASES & CRITIQUE\n\n93\n\nBaker claims Taco Bell had a duty to assist him and that it breached that duty by failing to provide\nassistance to him. Taco Bell argues it had no duty to assist Baker because it was not responsible for\nthe instrumentality that caused Baker\xe2\x80\x99s initial injury. We believe Baker is correct.\nTo effectively assert a negligence claim, Baker must establish: (1) that Taco Bell had a duty to\nconform its conduct to a standard of care arising from its relationship with Baker, (2) that Taco Bell\nfailed to conform its conduct to that standard of care, and (3) that Baker incurred injuries as a\nproximate result of Taco Bell\xe2\x80\x99s breach of its duty. The existence of a duty is a question of law for the\ncourt to decide. To determine whether a duty exists, we must balance three factors: (1) the\nrelationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and\n(3) public policy concerns.\nAs a general rule, an individual does not have a duty to aid or protect another person, even if he\nknows that person needs assistance. L.S. Ayres v. Hicks, 40 N.E.2d 334 (Ind. 1942); Restatement\n(Second) of Torts \xc2\xa7 314 (\xe2\x80\x9cThe fact that the actor realizes or should realize that action on his part is\nnecessary for another\xe2\x80\x99s aid or protection does not of itself impose upon him a duty to take such\naction.\xe2\x80\x9d). However, both common law and statutory exceptions to that general rule exist. See,\ne.g., Restatement \xc2\xa7 314B (employer has a duty to protect or aid an injured employee).\nBaker claims Taco Bell had the duty to assist him described under Section 314A of the\nRestatement, which provides the following exception to the general rule that one person need not\nassist another:\n\xc2\xa7 314A. Special Relations Giving Rise to Duty to Aid or Protect\n(1) A common carrier is under a duty to its passengers to take reasonable action:\n(a) to protect them against unreasonable risk of physical harm, and\n(b) to give them first aid after it knows or has reason to know that they are\nill or injured, and to care for them until they can be cared for by others.\n(2) An innkeeper is under a similar duty to his guests.\n(3) A possessor of land who holds it open to the public is under a similar duty to\nmembers of the public who enter in response to his invitation.\n(4) One who is required by law to take or who voluntarily takes the custody of\nanother under circumstances such as to deprive the other of his normal\nopportunities for protection is under a similar duty to the other.\nThe duty that arises under Section 314A exists because of the special relationship between the\nparties. The relationships listed in the rule are not intended to be exclusive; nevertheless, some\ncourts have restricted the application of \xc2\xa7 314A to business invitees. See, e.g., Gilbertson v.\nLeininger, 599 N.W.2d 127, 131 (Minn. 1999) (holding host to an overnight social guest does not\nhave a duty under \xc2\xa7 314A). In addition, the exception applies only while the relationship exists, so\nonce the passenger leaves the train or the guest leaves the hotel, the railroad or hotel no longer has\na duty to aid or protect an ill or injured individual. But see Kellner v. Lowney, 761 A.2d 421 (N.H.\n2000) (holding motel owner could be liable for injury to boy crossing public highway between two\nportions of motel property because owner should have foreseen the risk to his guests of crossing the\nhighway to get from hotel rooms to portion of hotel property where religious services were held).\nIn L.S. Ayres, our supreme court considered whether a department store, which was not in any\nway liable for a boy\xe2\x80\x99s initial injury by an escalator, nevertheless could be held liable for aggravation\nof the injuries caused by its employees\xe2\x80\x99 failure to stop the escalator. The court determined\nthere may be a legal obligation to take positive or affirmative steps to effect the\nrescue of a person who is helpless and in a situation of peril, when the one\nproceeded against is a master or an invitor or when the injury resulted from use\nof an instrumentality under the control of the defendant. Such an obligation may\nexist although the accident or original injury was caused by the negligence of the\nplaintiff or through that of a third person and without any fault on the part of the\ndefendant. Other relationships may impose a like obligation, but it is not\nnecessary to pursue that inquiry further at this time.\n\n\x0c94\n\nTORT LAW\n\nThe court noted that the boy \xe2\x80\x9cwas an invitee and he received his initial injury in using an\ninstrumentality provided by\xe2\x80\x9d L.S. Ayres and then held L.S. Ayres could be liable for the aggravation\nof the boy\xe2\x80\x99s injury caused by its failure to assist him.\nTaco Bell claims it had no duty to assist Baker because it was not responsible for Baker\xe2\x80\x99s initial\nillness or injury. It argues that, under L.S. Ayres, an Indiana business has a duty to assist a customer\nonly if the injury resulted from the use of an instrumentality under the control of the defendant. In\nessence, Taco Bell argues that Indiana law recognizes only a limited duty under \xc2\xa7 314A of the\nRestatement. Taco Bell\xe2\x80\x99s argument fails for a number of reasons.\nFirst, the cases cited by the supreme court in L.S. Ayres suggest the court did not intend to limit\nthe application of \xc2\xa7 314A to situations where the plaintiff was an invitee and the instrumentality\ncausing the injury belonged to the defendant. For example, the court discussed Depue v. Flatau, 111\nN.W. 1 (Minn. 1907), in which a home owner was held liable for aggravation of injuries to a severely\nill, fainting, and helpless businessman that the home owner sent away unattended on a cold winter\nnight. There, as here, the initial illness was not the responsibility of the defendant\xe2\x80\xa6.\nSecond, when the supreme court had reason later that same year to mention L.S. Ayres in\nanother of its opinions, it summarized the holding as follows: \xe2\x80\x9cthis court recognized a duty to one\nin peril on the defendant\xe2\x80\x99s premises as an invitee even though the peril was created without\nnegligence on the part of the defendant.\xe2\x80\x9d Jones v. State, 43 N.E.2d 1017 (Ind. 1942). That\nsummarization suggests the supreme court did not intend, as Taco Bell insists, to limit its holding\nto situations where a plaintiff could prove both that he was an invitee and that the defendant\xe2\x80\x99s\ninstrumentality caused the initial injury.\nThird, the Restatement explains:\nThe duty to give aid to one who is ill or injured extends to cases where the illness\nor injury is due to natural causes, to pure accident, to the acts of third person, or\nto the negligence of the plaintiff himself, as where a passenger has injured himself\nby clumsily bumping his head against a door.\nA number of the illustrations provided in the Restatement parallel the fact pattern here and\nsuggest Taco Bell had a duty to assist Baker. For example,\xe2\x80\xa6Illustration 7 provides:\nA is a small child sent by his parents for the day to B\xe2\x80\x99s kindergarten. In the course\nof the day A becomes ill with scarlet fever. Although recognizing that A is\nseriously ill, B does nothing to obtain medical assistance, or to take the child home\nor remove him to a place where help can be obtained. As a result, A\xe2\x80\x99s illness is\naggravated in a manner which proper medical attention would have avoided. B is\nsubject to liability to A for the aggravation of his injuries\xe2\x80\xa6.\nFinally, public policy suggests Taco Bell had a duty to provide reasonable care in this situation.\nWhen a storeowner opens his property to the public, he does so because he hopes to gain some\neconomic benefit from the public. Social policy dictates that the storeowner, who is deriving this\neconomic benefit from the presence of the customer, should assume the affirmative duty to help\ncustomers who become ill as a cost of doing business.\nTaco Bell argues placing this duty on businesses is unreasonable because then, in essence, a\nbusiness would be required to hire employees who were trained to diagnose and provide medical\nservices. See Br. of Appellee at 14 (\xe2\x80\x9cA rule requiring first aid to be delivered to any invitee, no matter\nthe type of business and no matter the circumstances that led to the injury, would require an\nimpossible and frightening standard of care for persons employed in the service industry.\xe2\x80\x9d); id. at\n15 (\xe2\x80\x9cTaco Bell sells tacos. Taco Bell does not and has never held itself out to be a medical treatment\nfacility. To require Taco Bell to treat these \xe2\x80\x98patients\xe2\x80\x99 would be unfair and unsafe for the \xe2\x80\x98patient\xe2\x80\x99 and\nthe Taco Bell employee alike.\xe2\x80\x9d). We disagree.\nAs comment f to Section 314A of the Restatement explains:\nThe business is not required to take any action beyond that which is reasonable\nunder the circumstances. In the case of an ill or injured person, the business will\nseldom be required to do more than give such first aid as it reasonably can, and\n\n\x0cCASES & CRITIQUE\n\n95\n\ntake reasonable steps to turn the sick man over to a physician, or to those who will\nlook after him and see that medical assistance is obtained. A business is not\nrequired to give any aid to one who is in the hands of apparently competent\npersons who have taken charge of him, or whose friends are present and\napparently in a position to give him all necessary assistance.\nAccordingly, the duty that arises is a duty to exercise reasonable care under the circumstances.\nA high school student employed at Taco Bell would not be expected to provide the type of first aid\nan emergency room doctor would provide, as such an expectation would not be \xe2\x80\x9creasonable.\xe2\x80\x9d\xe2\x80\xa6\nMoreover, as a practical matter, we fail to see the logic in Taco Bell\xe2\x80\x99s position that it should have\nno duty to aid in these types of situations. First, we find it unlikely customers would patronize a\nbusiness that left another customer who was ill or injured lying on the floor of the business simply\nbecause the business was not responsible for the customer\xe2\x80\x99s illness or injury.\nSecond, imposing on a business a duty to provide reasonable care even when the business is not\nresponsible for an illness or injury will rarely force a business to act in circumstances in which it\nshould not already have been acting. For example, if, as Taco Bell asserts, a business has no duty to\nassist if it is not responsible for the instrumentality, then: 1) if a customer falls to the ground, an\nemployee should determine before offering assistance whether the customer slipped on ice, in which\ncase the business has a duty to act, or whether the customer merely passed out from syncope, in\nwhich case the business has no duty; or 2) if a customer\xe2\x80\x99s face is turning blue, an employee should\ndetermine before providing assistance whether the person is choking on a food item from the\nbusiness, in which case the employee must offer assistance, or whether the person is having a heart\nattack or choking on a food item purchased from a third party, in which case the employee need not\noffer assistance. By implementing policies and procedures that allow their employees to assist\ninjured persons only when the business causes the illness or injury, a business might risk liability\nclaims caused by an employee\xe2\x80\x99s failure to act, or failure to act promptly, when an illness or\ninjury was in fact caused by an instrumentality of the business. Consequently, we are not placing a\nduty on businesses that they should not have already assumed.\nIn sum, Indiana case law, the Restatement (Second) of Torts, authority from other jurisdictions,\nand public policy all suggest Taco Bell had a duty, as a business that invited members of the public\nto enter its facility, to provide reasonable assistance to Baker even though Taco Bell was not\nresponsible for Baker\xe2\x80\x99s illness. Consequently, we hold Taco Bell had a duty to take reasonable action\nto give aid to Baker after he fell and to care for him until he could be cared for by others.\nBaker asserts Taco Bell provided no assistance. Taco Bell\xe2\x80\x99s employee claims she offered Baker\nassistance, but he refused to accept it. Thus, there is a question of material fact that precludes\nsummary judgment on this issue, and we must reverse and remand for trial. Reversed and remanded.\n1.\n\nQUESTIONS\nBad Host: The court notes that some courts have restricted the reach of Restatement\n\xc2\xa7 314A to business invitees, citing the holding in Gilbertson v. Leininger that the host of\nan overnight social guest has no affirmative duty under that section. Do you think this\ndistinction between business customers and social guests is defensible?\n\n2.\n\nYo Quiero Taco Bell: In a too-cute-by-half move, Taco Bell argues in its defense that\n\xe2\x80\x9cTaco Bell sells tacos.\xe2\x80\x9d While Taco Bell does indeed sell food that arguably passes for a\ntaco, why does this legal argument fail? What\xe2\x80\x99s Taco Bell really trying to say, and why\ndoesn\xe2\x80\x99t the court buy it?\n\n3.\n\nBFFs: Certain \xe2\x80\x9cspecial\xe2\x80\x9d relationships can give rise to affirmative duties. In the words of\nthe Restatement (Third) of Torts \xc2\xa7 40: \xe2\x80\x9cAn actor in a special relationship with another\nowes the other a duty of reasonable care with regard to risks that arise within the scope\nof the relationship.\xe2\x80\x9d Some relationships more clearly fall within the scope of this rule\xe2\x80\x94\nshopkeeper\xe2\x80\x93customer, innkeeper\xe2\x80\x93guest, hospital\xe2\x80\x93patient\xe2\x80\x94but what about close\nfriends? Consider Farwell v. Keaton, 240 N.W.2d 217 (Mich. 1976), in which Ricky\nFarwell was beaten up after he and his friend had been drinking and followed two girls\nto a restaurant. After the fight, Ricky\xe2\x80\x99s friend drove around while he went to sleep in the\n\n\x0c96\n\nTORT LAW\n\nback of the car. At around midnight, the friend parked the car at Ricky\xe2\x80\x99s grandparents\xe2\x80\x99\nhome, unsuccessfully attempted to rouse Ricky, and left. Ricky died three days later.\nShould his friend be liable for negligence? The Michigan Supreme Court held that being\n\xe2\x80\x9ccompanions in a social venture\xe2\x80\x9d was enough to create a duty to make reasonable efforts\nto get Ricky medical care. Should your wingman be on the hook under these\ncircumstances? How far might this principle extend? What if a group of teenagers is\nplaying Russian Roulette and one dies when the gun goes off, as in Theobald v.\nDolcimascola, 690 A.2d 1100 (N.J. App. Div. 1997)?\nThe following case describes Black people using outdated language now considered offensive.\nBULLOCK v. TAMIAMI TRAIL TOURS, INC.\nUnited States Court of Appeals for the Fifth Circuit (1959)\nRives, Judge:\nThe appellants are Negroes, British subjects, natives\nof Jamaica, married to each other, and in their early\nfifties. For more than twenty years the husband has\nbeen a minister of the Church of England. The wife is a\nmusician and teacher. Racial segregation is not\npracticed in the island of Jamaica. Prior to 1956, the\nappellants had left that island on only one trip and that\nwas to European countries and South American\ncountries which did not segregate the races. They were\nnot familiar with the racial segregation practiced in the Southern part of the United States.\nIn August 1956, they decided to make an extended visit to the United States, landing in Miami\nand going by bus first to Kansas City and then to New York. They made arrangements for the trip\nthrough the Mountain Travel Service before leaving Jamaica and bought tickets over the appellee\xe2\x80\x99s\nbus line. When the bus arrived in Perry, Florida, they were sitting together in the forward part of the\nbus usually occupied by white passengers. The husband was dark or black, while the wife, though a\nNegress, appeared to be a white woman. At Perry, Florida, one Milton Poppell entered the bus and\nviolently assaulted and beat the husband and slapped the wife. The circumstances are well described\nin the testimony of Poppell, quoted in the margin.1\xe2\x80\xa6\n\n1\n\n\xe2\x80\x9cQ. Mr. Poppell did you go on a bus in Perry and assault this man right here? A. Yes, I did\xe2\x80\xa6.\n\xe2\x80\x9cQ. Mr. Poppell, how did you know that the Reverend Bullock was on that bus? A. Well, the police and I were sitting\ndown there drinking coffee and I overheard the conversation of the bus driver telling the police that they were on there. He\ndidn't say they were on there, he said, talking to them, \xe2\x80\x98fellows look what I have got to contend with and nothing I can do\nabout it.\xe2\x80\x99 And the police says, \xe2\x80\x98our hands are tied too.\xe2\x80\x99\xe2\x80\xa6 I got up and asked if I could buy a ticket on the bus\xe2\x80\xa6.\n\xe2\x80\x9cQ. Mr. Poppell have you got anything against colored people, generally? A. Not as long as they stay in their place.\n\xe2\x80\x9cQ. Well, why did you assault him? A. Because he was out of his place.\n\xe2\x80\x9cQ. How did you know he was out of his place? The bus wasn\xe2\x80\x99t full then, was it? A. Not at that time, it wasn\xe2\x80\x99t, but when\neverybody got on it was full. Whenever I got on it wasn\xe2\x80\x99t full\xe2\x80\xa6.\n\xe2\x80\x9cQ. Did anything the bus driver say lead you to believe he wasn\xe2\x80\x99t in his place? A. Well, I don\xe2\x80\x99t know whether you would\nfigure it was what the bus driver said or what I felt that he was out of his place too\xe2\x80\xa6.\n\xe2\x80\x9cQ. Mr. Poppell\xe2\x80\xa6, you stated that you had nothing against colored people? A. that\xe2\x80\x99s right\xe2\x80\xa6.\n\xe2\x80\x9cQ. Did you attack the Reverend Bullock simply from the fact he was seated on the bus? A. Well, yes. And I wanted to\nsee and as a matter of fact he was with a white woman.\n\xe2\x80\x9cQ. What do you mean, with a white woman? A. Well, his wife is supposed to be white, I understand.\n\xe2\x80\x9cQ. How did you know who his wife was? Had you ever known the Bullocks before this? A. No.\n\xe2\x80\x9cQ. How did you know who his wife was? A. Well, she was pointed out as she came in the bus station.\n\xe2\x80\x9cQ. Was it the bus driver that pointed her out? A. I believe he made a remark to the policeman that that was his wife\ncoming in\xe2\x80\xa6.\n\xe2\x80\x9cQ. And she appeared to you to be white at that time? A. Yes, she did.\n\xe2\x80\x9cQ. Did he say anything about the man on the bus being married to a white woman? A. I don\xe2\x80\x99t remember.\n\xe2\x80\x9cQ. Maybe this will refresh your recollection \xe2\x80\x94 did he say the man on the bus was married to a white woman? A. I believe\nhe did\xe2\x80\xa6.\n\n\x0cCASES & CRITIQUE\n\n97\n\nAfter reaching New York, the appellants brought suit against the appellee\xe2\x80\xa6, claiming that the\nappellee had breached the duties owed to them as passengers by omitting to warn them of a\nforeseeable danger, by failing to protect them from that danger, and by willfully, or at least\nnegligently, aggravating the danger\xe2\x80\xa6. There the case was tried to the court without a jury\xe2\x80\xa6. [T]he\ndistrict court entered judgment for the defendant, feeling that the law of the State of Florida required\nit to do so\xe2\x80\xa6[because] the Florida Supreme Court [had] held that a carrier was not liable to a\npassenger for an unprovoked and illegal assault in cases such as this case\xe2\x80\xa6. We are not in agreement\nwith the district court either as to the Florida law or as to the ultimate facts, inferences or conclusions\nof duty and breach of duty on the part of the appellant carrier\xe2\x80\xa6.\nIn Hall v. Seaboard Air Line Ry. Co., 93 So. 151 (Fla. 1921), the case relied upon by the district\ncourt as dispositive of the case at bar, a female passenger was assaulted by a male passenger in a\nPullman berth, they being the only two occupants of the car. Holding that the plaintiff\xe2\x80\x99s proof failed\nto support her allegations that a porter and conductor heard her calls and bells in time to have\nprevented the assault, the court stated:\nThe liability of the carrier in such case rests, not upon the tort of the passenger,\nbut upon the negligent omission of the carrier through its servants to prevent the\ntort being committed. A failure to do anything which could have been done by the\nservant to prevent the injury renders the carrier liable. But to do something to\nprevent an injury resulting from an assault by a fellow passenger implies\nknowledge on the part of the servant that the act is contemplated by the stranger,\nor by due diligence the servant could have obtained such knowledge, or had the\nopportunity to acquire it sufficiently long in advance of its infliction to have\nprevented it with the force at his command. In guarding a passenger from a danger\nwhich is not usual or not incident to ordinary travel the carrier is held to the use\nof ordinary and reasonable care and diligence. It is the failure of the carrier\nthrough its agents to afford the required protection, after they had reasonable\ngrounds for believing that violence or the insult was imminent, upon which the\nliability of the carrier rests. It is not the fact of injury to the passenger that fixes\nthe carrier\xe2\x80\x99s liability. The injury must have been of such character and inflicted\nunder such circumstances as that it might have been reasonably anticipated or\nnaturally expected to occur\xe2\x80\xa6.\n[T]he rule may be generally stated that a carrier is liable for injury to its passenger caused by a\nfellow passenger or a third party if such injury by its nature could have been \xe2\x80\x9creasonably anticipated\xe2\x80\x9d\nor \xe2\x80\x9cnaturally expected to occur\xe2\x80\x9d or \xe2\x80\x9creasonably foreseen\xe2\x80\x9d in time to have prevented the injury. If the\ninjury could have been reasonably anticipated in time to have prevented its occurrence, the carrier\nis subjected to the highest degree of care to its passenger either to protect him from or to warn him\nof the danger. [Note that the duty to warn is identical to the duty to protect.]\nIt was impossible for the driver to have protected the Bullocks from Poppell\xe2\x80\x99s assault after his\nintent became evident, but we think that the district court was clearly erroneous in holding that\nTamiami could not have reasonably anticipated or foreseen the danger to the Bullocks in time to\nhave at least warned them of its imminence. We can visualize no stronger case than this to show a\nsituation where two bus drivers and the bus company officials should have reasonably anticipated\nthat mischief was hovering about and that the Bullocks were in some danger.\n\xe2\x80\x9cQ. Now, of the two things, which do you think is the worse, in your opinion[?] A. Well, that\xe2\x80\x99s about fifty-fifty\nproposition\xe2\x80\xa6. [H]e was out of his place in my opinion in the front of the bus and he was certainly out of his place being\nmarried to a white woman.\n\xe2\x80\x9cQ. Mr. Poppell when you went in there and asked him to move you didn\xe2\x80\x99t give him a chance to move? A. Well, I\nexpected a fight back so I didn\xe2\x80\x99t give him too much a chance.\n\xe2\x80\x9cQ. Why did you expect a fight back? A. I didn\xe2\x80\x99t figure he was going to give up his seat.\n\xe2\x80\x9cQ. Why did you figure that he wouldn\xe2\x80\x99t give up the seat? A. Well, just a matter of my opinion.\n\xe2\x80\x9cQ. Is it a practice that all colored people in Perry have to move back? A. Yes.\n\xe2\x80\x9cQ. Why did you expect this to be any different? A. Well, I guess by him riding so far without any trouble.\n\xe2\x80\x9cQ. Actually didn\xe2\x80\x99t you know that he had been asked to move? A. Yes, I did.\n\xe2\x80\x9cQ. How did you find that out? A. I believe that the bus driver made the statement\xe2\x80\xa6.\n\n\x0c98\n\nTORT LAW\n\nThe first driver testified that many people in West Florida would not approve of the Bullocks\xe2\x80\x99\nbeing seated together toward the front of the bus. Driver Cunningham stated that there would have\nbeen less chance of trouble if the Bullocks had been sitting in the back. The first driver, after\nexplaining to a complaining passenger that he could not move the Bullocks, heard another passenger\nsay something like \xe2\x80\x9cthey probably will move on down the line.\xe2\x80\x9d Both drivers had actual notice of the\ntwo Company bulletins dated January 31, 1953, and January 23, 1956, the latter plainly warning the\ndrivers of possible racial disturbances.2 Certainly, the first driver and, no doubt, Cunningham knew\nthe Bullocks were Jamaicans and British Nationals, and it is logical to infer that the drivers knew the\nBullocks were not experienced with \xe2\x80\x9csouthern tradition.\xe2\x80\x9d All of the appellee\xe2\x80\x99s witnesses testified that\nthis was the first instance they knew of in that part of the country where a Negro man and a\nseemingly white woman were seated together on a public carrier.\nFurthermore, this Court will take judicial notice (as the district court should have done) of the\ncommonly and generally known fact that the folkways prevalent in Taylor County, Florida, the\ncounty seat being Perry, would cause a reasonable man, familiar with local customs, to anticipate\nthat violence might result if a Negro man and a seemingly white woman should ride into the county\nseated together toward the front of an interurban bus.3\nThe next question is whether or not Tamiami, so charged with a duty of foreseeing danger to its\npassengers, took proper precautions to avoid such danger by the \xe2\x80\x9cutmost care and diligence of very\ncautious persons.\xe2\x80\x9d We think that Tamiami failed to exercise this care in several ways. It should have\ninstructed its agency in Jamaica to advise Negroes applying for passage through the southern part\nof the United States of the South\xe2\x80\x99s tradition of segregation. It should have instructed its driver to\nadvise Negroes who were obviously foreigners, here known to be such, of segregation customs. The\ndriver should have explained to the Bullocks his reasons for wanting them to move. Above all, the\ndriver should not, either willfully or negligently, have informed the assailant of the Bullocks\xe2\x80\x99 position\non the bus and of their apparent color and lack of color\xe2\x80\xa6. [W]e conclude that the danger should\nreasonably have been foreseen by Tamiami in time to act with the utmost care to avoid injury to its\npassengers, particularly by warning them and by not doing foolish things to increase their danger,\nand that Tamiami breached the duty owed to its passengers, the appellants. The judgment is\ntherefore reversed and the cause remanded with directions to enter judgment for each of the\nplaintiffs, appellants, and\xe2\x80\xa6to award each of them reasonable compensatory damages, including\ndamages for physical injury and mental suffering and humiliation\xe2\x80\xa6.\n1.\n\nQUESTIONS\nTorts and Equality: Did this case challenge racial and gender hierarchies in 1950s\nAmerica? Is tort law\xe2\x80\x94particularly negligence law\xe2\x80\x94an appropriate or effective way to\nmount such challenges? Do you think it had an effect on bus companies\xe2\x80\x99 policies going\nforward? How would you have advised Tamiami Trail Tours to adapt its practices in\nlight of this decision?\n\n2.\n\nEavesdropping: Does it seem to matter to the court whether the bus driver knew that\nPoppell could overhear his conversation with the police? Should it matter?\n\n3.\n\nJudicial Sociology: The court mentions the \xe2\x80\x9csouthern tradition\xe2\x80\x9d of segregation and\nobserves that anyone familiar with \xe2\x80\x9cfolkways\xe2\x80\x9d and \xe2\x80\x9clocal customs\xe2\x80\x9d in this part of Florida\nwould \xe2\x80\x9canticipate that violence might result if a Negro man and a seemingly white\nwoman should ride into the county seated together toward the front of an interurban\nbus.\xe2\x80\x9d If courts are to consider such social norms as part of their legal analyses, how\nshould they go about discovering and determining them?\n\n2\n\xe2\x80\x9cUnder No Circumstances Shall Police Authorities Be Summoned If A Passenger Refuses A Seating Or Reseating\nRequest. Should Any Disturbance Arise, Police Authorities May Be Summoned To Quell Such Disturbance.\xe2\x80\x9d\n3\n\xe2\x80\xa6We have the right to make use of knowledge of the popular and general customs of the people of this State, and public\nconditions therein\xe2\x80\xa6.\n\n\x0cCASES & CRITIQUE\n\n99\n\nLEFFLER v. SHARP\nSupreme Court of Mississippi (2004)\nCobb, Justice:\n\n\xc3\xa3\n\nOn December 4, 2000, Walter Leffler filed suit in the\nWarren County Circuit Court against Kim Free, individually\nand d/b/a Quarter Inn (collectively Free) and Harry Sharp,\nindividually, and Sharp Enterprises (collectively Sharp).\nLeffler sought damages for injuries he received when he fell\nthrough the roof of the premises immediately adjacent to the\nQuarter Inn in Vicksburg, Mississippi. Following discovery\nand the filing of motions for summary judgment by Free and\nSharp, the trial judge determined that Leffler\xe2\x80\x99s status upon\nentering the roof was that of a trespasser. The motions for\nsummary judgment were granted, thereby dismissing all claims against Free and Sharp. Leffler\nappeals arguing the following issue: Whether the trial court erred in finding Leffler to be a trespasser\nand in granting summary judgment to Free and Sharp on that basis, when there were unresolved\nissues of fact regarding legal status and duty owed.\nLeffler visited the Quarter Inn, a restaurant and lounge in Vicksburg, Mississippi, while he was\nin town conducting work on the old Mississippi River bridge. At approximately 10:00 p.m. one\nevening, Leffler and his co-workers arrived at a casino where they gambled and consumed alcoholic\nbeverages until 11:30 p.m. They left the casino, went to a local sports bar, and continued to consume\nalcoholic beverages until approximately 2:00 a.m. on February 6, 2000. From the sports bar, they all\nwent to the Quarter Inn. Leffler was a first-time visitor to the Quarter Inn.\nWhile at the Quarter Inn, Leffler noticed an open window leading to the rooftop. (The small\nwindow is thirty-two and one-half inches from the floor and when fully opened provides a\nmaximum opening of twenty-four inches in length and thirty-two inches in width.). After Leffler\nobserved individuals on the rooftop, he presumed the area was open to Quarter Inn patrons.\nAlthough a locked glass door with \xe2\x80\x9cNOT AN EXIT\xe2\x80\x9d stenciled on the glass was only four feet away,\nLeffler entered the roof through the open window. As he was walking on the rooftop, he fell through\nthe roof approximately twenty feet to the ground.\nAt the time of the incident, Kim Free owned and managed the Quarter Inn which is located on\nthe second floor of a building owned by Sharp Enterprises, Inc. Harry Sharp is the president of Sharp\nEnterprises, Inc. Sharp, individually, has no ownership interest in the property which is the subject\nof this appeal.\nThe premises occupied by the Quarter Inn originally included a rooftop terrace, access to which\nwas through a glass door inside the premises. In addition, there were at least two windows which\noverlooked the rooftop terrace from a common area of the Quarter Inn. Although previous\nbusinesses that occupied the present location of the Quarter Inn may have utilized the roof area as\na part of their business, Free and Sharp assert that the roof was never part of the leased premises.\nThe lease agreement offered as proof included the provision that \xe2\x80\x9clessees will not have access to the\nroof terrace at the rear of 1302 Washington Street.\xe2\x80\x9d\nPrior to the date of the lease between Sharp and Free, Sharp considered leasing the rooftop area.\nTo determine the safety of the roof, Sharp consulted with an architect and structural engineer who\nadvised him that the roof was not safe for his intended use. Sharp then informed Free of this defect,\nand the two individuals, along with Jo Jo Saucier (a lessee of the premises with Free, but not a named\nparty in the trial court or on appeal) discussed what measures should be taken to secure the roof\narea. The parties then decided that Saucier\xe2\x80\x99s husband would weld bars over the window in order to\nkeep people off of the roof. However, neither the bars, nor any other protective measures, were ever\nplaced over the window.\nThis appeal involves the dispute over whether Leffler should be classified as an invitee, licensee,\nor trespasser at the time the injury occurred. It is undisputed that Leffler was an invitee upon his\n\xc3\xa3\n\nYassine Ja\xc3\xaf, A Burning Requiem (CC BY 2.0).\n\n\x0c100\n\nTORT LAW\n\nentrance into the Quarter Inn. The status dispute arises, however, when Leffler entered the roof and\nsubsequently fell through it. Although Leffler insists that at the time of his injury he remained an\ninvitee, he does argue in the alternative that his status was at least that of an implied licensee. Leffler\nalso argues for the sake of argument that if he is a trespasser, the owner of the premises has a duty\nto refrain from willfully and wantonly injuring him.\nFree and Sharp argue that upon Leffler\xe2\x80\x99s entrance onto the roof, he became a trespasser. As a\nresult, they maintain that there is no showing that they acted willfully and wantonly, resulting in\nLeffler\xe2\x80\x99s injury. This Court applies a de novo standard of review to a grant of summary judgment by\nthe trial court. The evidence must be viewed in the light most favorable to the party against whom\nthe motion has been made. A motion for summary judgment lies only when there is no genuine\nissue of material fact, and the moving party is entitled to a judgment as a matter of law\xe2\x80\xa6.\nMississippi applies a three-step process to determine premises liability. The first step consists of\nclassifying the status of the injured person as an invitee, licensee, or a trespasser. Following this\nidentification, the duty which was owed to the injured party is determined. The third step is to\ndetermine whether this duty was breached by the landowner or business operator. The\ndetermination of which status a particular plaintiff holds can be a jury question, but where the facts\nare not in dispute the classification becomes a question of law for the trial judge.\nAs to the first step, determination of the injured party\xe2\x80\x99s status, this Court has held that as to\nstatus, an invitee is a person who goes upon the premises of another in answer to the express or\nimplied invitation of the owner or occupant for their mutual advantage. A licensee is one who enters\nupon the property of another for his own convenience, pleasure, or benefit pursuant to the license\nor implied permission of the owner whereas a trespasser is one who enters upon another\xe2\x80\x99s premises\nwithout license, invitation, or other right\xe2\x80\xa6[and] merely for his own purposes, pleasure, or\nconvenience, or out of curiosity, and without any enticement, allurement, inducement or express or\nimplied assurance of safety from the owner or person in charge.\nThe second step is to identify the duty owed to the injured party. The owner of the premises is\nnot an insurer of the invitee\xe2\x80\x99s safety, but does owe to an invitee the duty to keep the premises\nreasonably safe, and when not reasonably safe, to warn only where there is hidden danger or peril\nthat is not in plain and open view. Although licensees and trespassers are different classifications,\nlandowners owe licensees and trespassers the same duty, specifically, to refrain from willfully or\nwantonly injuring them.\nLeffler maintains that his status upon his arrival and at the time of the accident was that of an\ninvitee of Free, the Quarter Inn, and Sharp, on the premises so that he could have a good time with\nhis co-workers by partaking in services provided by the Quarter Inn. In order to receive classification\nas an invitee, this Court held that an invitee answers an invitation to enter the owner\xe2\x80\x99s premises for\ntheir mutual advantage. Leffler and the Quarter Inn mutually benefited from the fact that Leffler was\nallowed to continue the night\xe2\x80\x99s fun at the Quarter Inn while the restaurant/lounge could continue\nmaking a profit.\nLeffler maintains that he remained an invitee at the time of his injury since Free and Sharp held\nthe roof out as a part of the premises by allowing patrons to enter and use the roof terrace. In a\ndeposition, Sharp testified that he and Free discussed what action would best secure the window,\nthereby keeping patrons off the rooftop. Sharp instructed Free that the roof was not part of the lease\nand was not to be used by anyone. In order to secure the window, the parties agreed that bars would\nbe welded to the window. Although this safety measure never occurred, the dimensions of the\nwindow, being 24 inches by 32 inches, and almost 3 feet above the floor, belie any indication that\npatrons were invited to go onto the roof. Leffler asserts that because Sharp anticipated that\ncustomers might eventually try to utilize the rooftop, a question of fact exists as to whether Free and\nSharp knew, or reasonably should have known, that customers were gathering on the roof.\nAlthough Leffler was an invitee at the time he entered the Quarter Inn, he was not an invitee at\nthe time of the injury. An invitee who goes beyond the bounds of his invitation loses the status of\ninvitee and the rights which accompany that state. Free and Sharp only extended their invitation to\npatrons to come inside the establishment. Upon his entrance to the Quarter Inn, Leffler was an\ninvitee, but once he exited the establishment and entered onto the roof terrace, he went beyond the\nbounds of his invitation, therefore losing his invitee status.\n\n\x0cCASES & CRITIQUE\n\n101\n\nAn occupant is an invitee where the owner of the premises and the occupant receive mutual\nbenefits. Neither Free nor Sharp benefited from Leffler\xe2\x80\x99s walk on the roof. In addition to mutual\nbenefits, a landowner does not have to insure the invitee\xe2\x80\x99s safety, but the landowner must keep the\npremises reasonably safe, and when not reasonably safe, to warn only where there is hidden danger.\nFree and Sharp kept the Quarter Inn reasonably safe for patrons. Leffler\xe2\x80\x99s accident did not happen\nwithin the walls of the Quarter Inn, but on a rooftop adjacent to the establishment. Free and Sharp\xe2\x80\x99s\nacts of locking and marking the exit door were done to keep the Quarter Inn safe for patrons. Leffler\nwas not an invitee at the location and time of the accident and, therefore, was not owed the duty\ngiven to an invitee.\nLeffler argues in the alternative that he was a licensee at the time of the accident. A licensee, in\ncontrast to a trespasser, enters the property of another pursuant to the license or implied permission\nof the owner but enters for the convenience, pleasure or benefit of the licensee. Leffler entered the\nroof area for his convenience, pleasure and benefit because the bar was hot, crowded, and loud while\nthe roof terrace was cool, open, and quiet.\nIn an effort to further clarify the distinction between the status of an injured party, this Court\nin Clark v. Moore Memorial United Methodist Church, 538 So.2d 760 (Miss. 1989), distinguished\nbetween the \xe2\x80\x9cinvitation\xe2\x80\x9d required of an invitee and \xe2\x80\x9cpermission\xe2\x80\x9d required for a licensee. The\nword invitation was defined as \xe2\x80\x9cconduct which justifies others in believing that the possessor desires\nthem to enter the land,\xe2\x80\x9d while permission was defined as \xe2\x80\x9cconduct justifying others in believing that\nthe possessor is willing that they shall enter, if they desire to do so.\xe2\x80\x9d The two terms were further\nclarified with \xe2\x80\x9cmere permission, as distinguished from invitation, is sufficient to make the visitor a\nlicensee but it does not make him an invitee.\xe2\x80\x9d\nFree and Sharp never engaged in conduct signifying to patrons that the roof area was open to\npatrons. No dispute exists that the window was open on the night in question. However, based upon\nthe definition of permission, these facts indicate that they did not intend (or grant permission) for\nLeffler or other patrons to enter the roof area through the glass door, or through the open window.\nAlthough Leffler entered the roof terrace for his own benefit, he lacked permission to enter the roof\nterrace from Free or Sharp. Leffler did not enjoy the status of a licensee.\nFree and Sharp argue that Leffler was a trespasser, citing this Court\xe2\x80\x99s reasoning in Kelley v.\nSportsmen\xe2\x80\x99s Speedway, 80 So.2d 785 (Miss. 1955): \xe2\x80\x9cA trespasser is a person who enters the premises\nof another without license, invitation, or other right, and intrudes for some definite purpose of his own,\nor at his convenience, or merely as an idler with no apparent purpose, other than, perhaps, to satisfy his\ncuriosity.\xe2\x80\x9d Leffler entered the roof area without invitation or permission from Free or Sharp. On his\nway to the restroom, Leffler had seen two individuals standing outside the window. Returning from\nthe restroom, the two individuals had reentered the Quarter Inn. Wanting to escape the crowd, loud\nmusic, heat, and smoke a cigarette, Leffler entered the roof terrace. There was no sign or indication\nwithin the Quarter Inn inviting or granting permission to patrons to enter the roof terrace. However,\na sign on the glass door warned patrons not to use the door as an exit to the roof terrace.\nThis Court recently reaffirmed that a trespasser enters another\xe2\x80\x99s property without any\nenticement, allurement, inducement. Leffler was neither enticed nor allured onto the roof by Free\nor Sharp. Although the window was open, Free and Sharp did not entice the patrons to step through\na high, small, narrow window onto the roof. In addition, neither party has provided evidence that\nQuarter Inn employees were aware that some patrons had entered the roof area.\nThe third step in determining premises liability is determination of whether the owner breached\na duty\xe2\x80\xa6. The duty owed to a trespasser is to refrain from willfully or wantonly injuring the\ntrespasser. To constitute willful or wanton injury, something more is required to impose liability\nthan mere inadvertence or lack of attention; there must be a more or less extreme departure from\nordinary standards of care, and conduct must differ in quality, as well as in degree, from ordinary\nnegligence involving a conscious disregard of a known serious danger. Free and Sharp never\ndisregarded or took lightly the condition of the roof terrace. In order to keep patrons off of it, Sharp\nkept in his possession the only key to the glass door exiting onto the roof in order to ensure that the\ndoor remained locked at all times. They not only kept the door locked; they also stenciled in red\nletters \xe2\x80\x9cNOT AN EXIT\xe2\x80\x9d on the glass door.\n\n\x0c102\n\nTORT LAW\n\nAn owner owes trespassers no duty to keep his premises in a safe condition for their use, and as a\ngeneral rule, he is not held responsible for an injury sustained by a trespasser upon the premises from\na defect therein. Although the roof terrace was owned by Sharp Enterprises, the roof was not part of\nthe lease between Free, Sharp, and Sharp Enterprises. The roof was also not a part of the Quarter Inn.\nAdditionally, a landowner need not make it impossible for persons to trespass before he may treat\nintruders as trespassers\xe2\x80\xa6. Leffler entered the roof area of the Quarter Inn without invitation or\npermission. Free and Sharp took reasonable steps to make sure access to the roof was denied by\nkeeping the door locked and stenciling the letters \xe2\x80\x9cNOT AN EXIT\xe2\x80\x9d on the door. Although this Court\nis mindful of the fact that Leffler received severe injuries, his status at the time of the incident was that\nof a trespasser, and the trial court correctly granted summary judgment dismissing his claims\xe2\x80\xa6.\n1.\n\nQUESTIONS\nDistinguishing Duties: Was Leffler a trespasser, an invitee, or a licensee? Did his status\nshift over the course of the night? Why does it matter?\n\n2.\n\nNo Smoking: Leffler\xe2\x80\x99s accident occurred in 2000, before many states had banned\nsmoking indoors. What if the case had happened today? How might you try to use this\nchange in smoking laws to help Leffler win his case?\n\n3.\n\nWriting on the Wall: The court uses the \xe2\x80\x9cNOT AN EXIT\xe2\x80\x9d stencil to undermine the\nviability of Leffler\xe2\x80\x99s claim. Can you think of an argument why the stencil might have\nhelped Leffler argue that he wasn\xe2\x80\x99t a trespasser?\nPOSECAI v. WAL-MART\nSupreme Court of Louisiana (1999)\n\nMarcus, Justice:\n\n\xc3\xa3\n\nShirley Posecai brought suit against Sam\xe2\x80\x99s Wholesale Club\n(\xe2\x80\x9cSam\xe2\x80\x99s\xe2\x80\x9d) in Kenner after she was robbed at gunpoint in the store\xe2\x80\x99s\nparking lot. On July 20, 1995, Mrs. Posecai went to Sam\xe2\x80\x99s to make\nan exchange and to do some shopping. She exited the store and\nreturned to her parked car at approximately 7:20 p.m. It was not\ndark at the time. As Mrs. Posecai was placing her purchases in the\ntrunk, a man who was hiding under her car grabbed her ankle and\npointed a gun at her. The unknown assailant instructed her to\nhand over her jewelry and her wallet. While begging the robber to spare her life, she gave him her\npurse and all her jewelry. Mrs. Posecai was wearing her most valuable jewelry at the time of the\nrobbery because she had attended a downtown luncheon earlier in the day. She lost a two and a half\ncarat diamond ring given to her by her husband for their twenty-fifth wedding anniversary, a\ndiamond and ruby bracelet and a diamond and gold watch, all valued at close to $19,000.\nWhen the robber released Mrs. Posecai, she ran back to the store for help. The Kenner Police\nDepartment was called and two officers came out to investigate the incident. The perpetrator was never\napprehended and Mrs. Posecai never recovered her jewelry despite searching several pawn shops.\nAt the time of this armed robbery, a security guard was stationed inside the store to protect the\ncash office from 5:00 p.m. until the store closed at 8:00 p.m. He could not see outside and Sam\xe2\x80\x99s did\nnot have security guards patrolling the parking lot. At trial, the security guard on duty, Kenner Police\nOfficer Emile Sanchez, testified that he had worked security detail at Sam\xe2\x80\x99s since 1986 and was not\naware of any similar criminal incidents occurring in Sam\xe2\x80\x99s parking lot during the nine years prior\nto the robbery of Mrs. Posecai. He further testified that he did not consider Sam\xe2\x80\x99s parking lot to be\na high crime area, but admitted that he had not conducted a study on the issue.\nThe plaintiff presented the testimony of two other Kenner police officers. Officer Russell Moran\ntestified that he had patrolled the area around Sam\xe2\x80\x99s from 1993 to 1995. He stated that the\nsubdivision behind Sam\xe2\x80\x99s, Lincoln Manor, is generally known as a high crime area, but that the\n\xc3\xa3\n\nJJ Bers, Closed Sam\xe2\x80\x99s Club (CC BY 2.0).\n\n\x0cCASES & CRITIQUE\n\n103\n\nKenner Police were rarely called out to Sam\xe2\x80\x99s. Officer George Ansardi, the investigating officer,\nsimilarly testified that Lincoln Manor is a high crime area but explained that Sam\xe2\x80\x99s is not considered\na high crime location. He further stated that to his knowledge none of the other businesses in the\narea employed security guards at the time of this robbery.\nAn expert on crime risk assessment and premises security, David Kent, was qualified and\ntestified on behalf of the plaintiff. It was his opinion that the robbery of Mrs. Posecai could have\nbeen prevented by an exterior security presence. He presented crime data from the Kenner Police\nDepartment indicating that between 1989 and June of 1995 there were three robberies or \xe2\x80\x9cpredatory\noffenses\xe2\x80\x9d on Sam\xe2\x80\x99s premises, and provided details from the police reports on each of these crimes.\nThe first offense occurred at 12:45 a.m. on March 20, 1989, when a delivery man sleeping in his truck\nparked in back of the store was robbed. In May of 1992, a person was mugged in the store\xe2\x80\x99s parking\nlot. Finally, on February 7, 1994, an employee of the store was the victim of a purse snatching, but\nshe indicated to the police that the crime was related to a domestic dispute.\nIn order to broaden the geographic scope of his crime data analysis, Mr. Kent looked at the crime\nstatistics at thirteen businesses on the same block as Sam\xe2\x80\x99s, all of which were either fast food\nrestaurants, convenience stores or gas stations. He found a total of eighty-three predatory offenses\nin the six and a half years before Mrs. Posecai was robbed. Mr. Kent concluded that the area around\nSam\xe2\x80\x99s was \xe2\x80\x9cheavily crime impacted,\xe2\x80\x9d although he did not compare the crime statistics he found\naround Sam\xe2\x80\x99s to any other area in Kenner or the New Orleans metro area.\nMrs. Posecai contends that Sam\xe2\x80\x99s was negligent in failing to provide adequate security in the\nparking lot considering the high level of crime in the surrounding area. Seeking to recover for mental\nanguish as well as for her property loss, she alleged that after this incident she had trouble sleeping\nand was afraid to go out by herself at night. After a bench trial, the trial judge held that Sam\xe2\x80\x99s owed\na duty to provide security in the parking lot because the robbery of the plaintiff was foreseeable and\ncould have been prevented by the use of security. A judgment was rendered in favor of Mrs. Posecai,\nawarding $18,968 for her lost jewelry and $10,000 in general damages for her mental anguish. The\ntrial judge further ruled that Sam\xe2\x80\x99s was 75% at fault and the unknown perpetrator was only 25% at\nfault. Sam\xe2\x80\x99s appealed. The court of appeal found that the trial judge erred in apportioning fault\nbetween Sam\xe2\x80\x99s and the criminal who intentionally robbed Mrs. Posecai. It amended the judgment\nto find Sam\xe2\x80\x99s solely at fault for the damages suffered by the plaintiff and affirmed the judgment as\namended. Upon Sam\xe2\x80\x99s application, we granted certiorari to review the correctness of that decision.\nThe sole issue presented for our review is whether Sam\xe2\x80\x99s owed a duty to protect Mrs. Posecai\nfrom the criminal acts of third parties under the facts and circumstances of this case.\nThis court has adopted a duty-risk analysis to determine whether liability exists under the\nparticular facts presented. Under this analysis the plaintiff must prove that the conduct in question\nwas the cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the\nrequisite duty was breached by the defendant and the risk of harm was within the scope of protection\nafforded by the duty breached. Under the duty-risk analysis, all four inquiries must be affirmatively\nanswered for plaintiff to recover.\nA threshold issue in any negligence action is whether the defendant owed the plaintiff a duty.\nWhether a duty is owed is a question of law. In deciding whether to impose a duty in a particular\ncase, the court must make a policy decision in light of the unique facts and circumstances presented.\nThe court may consider various moral, social, and economic factors, including the fairness of\nimposing liability; the economic impact on the defendant and on similarly situated parties; the need\nfor an incentive to prevent future harm; the nature of defendant\xe2\x80\x99s activity; the potential for an\nunmanageable flow of litigation; the historical development of precedent; and the direction in which\nsociety and its institutions are evolving.\nThis court has never squarely decided whether business owners owe a duty to protect their\npatrons from crimes perpetrated by third parties. It is therefore helpful to look to the way in which\nother jurisdictions have resolved this question. Most state supreme courts that have considered the\nissue agree that business owners do have a duty to take reasonable precautions to protect invitees\nfrom foreseeable criminal attacks.\nWe now join other states in adopting the rule that although business owners are not the insurers\nof their patrons\xe2\x80\x99 safety, they do have a duty to implement reasonable measures to protect their\n\n\x0c104\n\nTORT LAW\n\npatrons from criminal acts when those acts are foreseeable. We emphasize, however, that there is\ngenerally no duty to protect others from the criminal activities of third persons. This duty only arises\nunder limited circumstances, when the criminal act in question was reasonably foreseeable to the\nowner of the business. Determining when a crime is foreseeable is therefore a critical inquiry.\nOther jurisdictions have resolved the foreseeability issue in a variety of ways, but four basic\napproaches have emerged. The first approach, although somewhat outdated, is known as the specific\nharm rule. According to this rule, a landowner does not owe a duty to protect patrons from the\nviolent acts of third parties unless he is aware of specific, imminent harm about to befall them.\nCourts have generally agreed that this rule is too restrictive in limiting the duty of protection that\nbusiness owners owe their invitees.\nMore recently, some courts have adopted a prior similar incidents test. Under this test,\nforeseeability is established by evidence of previous crimes on or near the premises. The idea is that\na past history of criminal conduct will put the landowner on notice of a future risk. Therefore, courts\nconsider the nature and extent of the previous crimes, as well as their recency, frequency, and\nsimilarity to the crime in question. This approach can lead to arbitrary results because it is applied\nwith different standards regarding the number of previous crimes and the degree of similarity\nrequired to give rise to a duty.\nThe third and most common approach used in other jurisdictions is known as the totality of the\ncircumstances test. This test takes additional factors into account, such as the nature, condition, and\nlocation of the land, as well as any other relevant factual circumstances bearing on foreseeability\xe2\x80\xa6.\nThe application of this test often focuses on the level of crime in the surrounding area and courts\nthat apply this test are more willing to see property crimes or minor offenses as precursors to more\nviolent crimes. In general, the totality of the circumstances test tends to place a greater duty on\nbusiness owners to foresee the risk of criminal attacks on their property and has been criticized as\nbeing too broad a standard, effectively imposing an unqualified duty to protect customers in areas\nexperiencing any significant level of criminal activity.\nThe final standard that has been used to determine foreseeability is a balancing test, an approach\nwhich has been adopted in California and Tennessee\xe2\x80\xa6in response to the perceived unfairness of\nthe totality test. The balancing test seeks to address the interests of both business proprietors and\ntheir customers by balancing the foreseeability of harm against the burden of imposing a duty to\nprotect against the criminal acts of third persons\xe2\x80\xa6. Under this test, the high degree of foreseeability\nnecessary to impose a duty to provide security, will rarely, if ever, be proven in the absence of prior\nsimilar incidents of crime on the property.\nWe agree that a balancing test is the best method for determining when business owners owe a\nduty to provide security for their patrons. The economic and social impact of requiring businesses\nto provide security on their premises is an important factor. Security is a significant monetary\nexpense for any business and further increases the cost of doing business in high crime areas that\nare already economically depressed. Moreover, businesses are generally not responsible for the\nendemic crime that plagues our communities, a societal problem that even our law enforcement and\nother government agencies have been unable to solve. At the same time, business owners are in the\nbest position to appreciate the crime risks that are posed on their premises and to take reasonable\nprecautions to counteract those risks.\nWith the foregoing considerations in mind, we adopt the following balancing test to be used in\ndeciding whether a business owes a duty of care to protect its customers from the criminal acts of\nthird parties. The foreseeability of the crime risk on the defendant\xe2\x80\x99s property and the gravity of the\nrisk determine the existence and the extent of the defendant\xe2\x80\x99s duty. The greater the foreseeability\nand gravity of the harm, the greater the duty of care that will be imposed on the business. A very\nhigh degree of foreseeability is required to give rise to a duty to post security guards, but a lower\ndegree of foreseeability may support a duty to implement lesser security measures such as using\nsurveillance cameras, installing improved lighting or fencing, or trimming shrubbery. The plaintiff\nhas the burden of establishing the duty the defendant owed under the circumstances.\nThe foreseeability and gravity of the harm are to be determined by the facts and circumstances\nof the case. The most important factor to be considered is the existence, frequency and similarity of\nprior incidents of crime on the premises, but the location, nature and condition of the property\n\n\x0cCASES & CRITIQUE\n\n105\n\nshould also be taken into account. It is highly unlikely that a crime risk will be sufficiently foreseeable\nfor the imposition of a duty to provide security guards if there have not been previous instances of\ncrime on the business\xe2\x80\x99 premises.\nIn the instant case, there were only three predatory offenses on Sam\xe2\x80\x99s premises in the six and a\nhalf years prior to the robbery of Mrs. Posecai. The first of these offenses occurred well after store\nhours, at almost one o\xe2\x80\x99clock in the morning, and involved the robbery of a delivery man who was\ncaught unaware as he slept near Sam\xe2\x80\x99s loading dock behind the store. In 1992, a person was mugged\nwhile walking through the parking lot. Two years later, an employee of the store was attacked in the\nparking lot and her purse was taken, apparently by her husband. A careful consideration of the\nprevious incidents of predatory offenses on the property reveals that there was only one other crime\nin Sam\xe2\x80\x99s parking lot, the mugging in 1992, that was perpetrated against a Sam\xe2\x80\x99s customer and that\nbears any similarity to the crime that occurred in this case. Given the large number of customers\nthat used Sam\xe2\x80\x99s parking lot, the previous robbery of only one customer in all those years indicates a\nvery low crime risk. It is also relevant that Sam\xe2\x80\x99s only operates during daylight hours and must\nprovide an accessible parking lot to the multitude of customers that shop at its store each year.\nAlthough the neighborhood bordering Sam\xe2\x80\x99s is considered a high crime area by local law\nenforcement, the foreseeability and gravity of harm in Sam\xe2\x80\x99s parking lot remained slight.\nWe conclude that Sam\xe2\x80\x99s did not possess the requisite degree of foreseeability for the imposition\nof a duty to provide security patrols in its parking lot. Nor was the degree of foreseeability sufficient\nto support a duty to implement lesser security measures. Accordingly, Sam\xe2\x80\x99s owed no duty to protect\nMrs. Posecai from the criminal acts of third parties under the facts and circumstances of this case.\nHaving found that no duty was owed, we do not reach the other elements of the duty-risk analysis\nthat must be proven in establishing a negligence claim\xe2\x80\xa6.\n1.\n\nQUESTIONS\nShirley, You Can\xe2\x80\x99t Be Serious? Why is it even debatable whether Sam\xe2\x80\x99s owed Shirley\nPosecai a duty? Wasn\xe2\x80\x99t it all the robber\xe2\x80\x99s fault?\n\n2.\n\nDeep Pockets: The court picks the balancing test to determine whether business owners\nowe a duty to protect their patrons from crimes committed by third parties, in part\nbecause security can be expensive. Sam\xe2\x80\x99s parent company, Wal-Mart, was the world\xe2\x80\x99s\nlargest company by revenue in 2020, with over $548 billion. Can\xe2\x80\x99t it afford better\nsecurity? Should profitability be relevant when courts determine the duty question?\n\n3.\n\nBe the Judge: If you were on the Louisiana Supreme Court, which test would you pick?\nThe following case discusses stalking.\nTARASOFF v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA\nSupreme Court of California (1976)\n\nTobriner, Justice:\n\n\xc3\xa3\n\nOn October 27, 1969, Prosenjit Poddar killed Tatiana\nTarasoff. Plaintiffs, Tatiana\xe2\x80\x99s parents, allege that two months earlier\nPoddar confided his intention to kill Tatiana to Dr. Lawrence Moore, a\npsychologist employed by the Cowell Memorial Hospital at the\nUniversity of California at Berkeley. They allege that on Moore\xe2\x80\x99s request,\nthe campus police briefly detained Poddar, but released him when he\nappeared rational. They further claim that Dr. Harvey Powelson, Moore\xe2\x80\x99s\nsuperior, then directed that no further action be taken to detain Poddar.\nNo one warned plaintiffs of Tatiana\xe2\x80\x99s peril\xe2\x80\xa6.\nPlaintiffs\xe2\x80\x99 complaints predicate liability on two grounds: defendants\xe2\x80\x99\nfailure to warn plaintiffs of the impending danger and their failure to\n\xc3\xa3\n\nMarc Buehler, UC Berkeley Campus Tower (CC BY-NC 2.0).\n\n\x0c106\n\nTORT LAW\n\n[confine Poddar under California statutes specifying the conditions under which persons may be\ninvoluntarily committed for psychological treatment.] Defendants, in turn, assert that they owed no\nduty of reasonable care to Tatiana\xe2\x80\xa6.\nWe shall explain that defendant therapists cannot escape liability merely because Tatiana herself\nwas not their patient. When a therapist determines, or pursuant to the standards of his profession\nshould determine, that his patient presents a serious danger of violence to another, he incurs an\nobligation to use reasonable care to protect the intended victim against such danger. The discharge\nof this duty may require the therapist to take one or more of various steps, depending upon the\nnature of the case. Thus it may call for him to warn the intended victim or others likely to apprise\nthe victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary\nunder the circumstances.\nIn the case at bar, plaintiffs admit that defendant therapists notified the police, but argue on\nappeal that the therapists failed to exercise reasonable care to protect Tatiana in that they did not\nconfine Poddar and did not warn Tatiana or others likely to apprise her of the danger. Defendant\ntherapists, however, are public employees [who enjoy statutory immunity for certain \xe2\x80\x9cdiscretionary\xe2\x80\x9d\nacts, including their failure to confine Poddar]. No specific statutory provision, however, shields\nthem from liability based upon failure to warn Tatiana or others likely to apprise her of the danger\xe2\x80\xa6.\nPlaintiffs therefore can amend their complaints to allege that, regardless of the therapists\xe2\x80\x99\nunsuccessful attempt to confine Poddar, since they knew that Poddar was at large and dangerous,\ntheir failure to warn Tatiana or others likely to apprise her of the danger constituted a breach of the\ntherapists\xe2\x80\x99 duty to exercise reasonable care to protect Tatiana.\nPlaintiffs, however, plead no relationship between Poddar and the police defendants which\nwould impose upon them any duty to Tatiana, and plaintiffs suggest no other basis for such a duty.\nPlaintiffs have, therefore, failed to show that the trial court erred in sustaining the demurrer of the\npolice defendants without leave to amend.\n\xe2\x80\xa6Plaintiffs\xe2\x80\x99 first cause of action, entitled \xe2\x80\x9cFailure to Detain a Dangerous Patient,\xe2\x80\x9d alleges that\non August 20, 1969, Poddar was a voluntary outpatient receiving therapy at Cowell Memorial\nHospital. Poddar informed Moore, his therapist, that he was going to kill an unnamed girl, readily\nidentifiable as Tatiana, when she returned home from spending the summer in Brazil. Moore, with\nthe concurrence of Dr. Gold, who had initially examined Poddar, and Dr. Yandell, assistant to the\ndirector of the department of psychiatry, decided that Poddar should be committed for observation\nin a mental hospital. Moore orally notified Officers Atkinson and Teel of the campus police that he\nwould request commitment. He then sent a letter to Police Chief William Beall requesting the\nassistance of the police department in securing Poddar\xe2\x80\x99s confinement.\nOfficers Atkinson, Brownrigg, and Halleran took Poddar into custody, but, satisfied that Poddar\nwas rational, released him on his promise to stay away from Tatiana. Powelson, director of the\ndepartment of psychiatry at Cowell Memorial Hospital, then asked the police to return Moore\xe2\x80\x99s\nletter, directed that all copies of the letter and notes that Moore had taken as therapist be destroyed,\nand \xe2\x80\x9cordered no action to place Prosenjit Poddar in 72-hour treatment and evaluation facility.\xe2\x80\x9d\nPlaintiffs\xe2\x80\x99 second cause of action, entitled \xe2\x80\x9cFailure to Warn On a Dangerous Patient,\xe2\x80\x9d\nincorporates the allegations of the first cause of action, but adds the assertion that defendants\nnegligently permitted Poddar to be released from police custody without \xe2\x80\x9cnotifying the parents of\nTatiana Tarasoff that their daughter was in grave danger from Posenjit Poddar.\xe2\x80\x9d Poddar persuaded\nTatiana\xe2\x80\x99s brother to share an apartment with him near Tatiana\xe2\x80\x99s residence; shortly after her return\nfrom Brazil, Poddar went to her residence and killed her\xe2\x80\xa6.\nThe second cause of action can be amended to allege that Tatiana\xe2\x80\x99s death proximately resulted\nfrom defendants\xe2\x80\x99 negligent failure to warn Tatiana or others likely to apprise her of her\ndanger\xe2\x80\xa6. Defendants, however, contend that in the circumstances of the present case they owed no\nduty of care to Tatiana or her parents and that, in the absence of such duty, they were free to act in\ncareless disregard of Tatiana\xe2\x80\x99s life and safety.\nIn analyzing this issue, we bear in mind that legal duties are not discoverable facts of nature, but\nmerely conclusory expressions that, in cases of a particular type, liability should be imposed for\ndamage done. As stated in Dillon v. Legg, 441 P.2d 912 (Cal. 1968): \xe2\x80\x9cThe assertion that liability\nmust be denied because defendant bears no \xe2\x80\x98duty\xe2\x80\x99 to plaintiff begs the essential question\xe2\x80\x94whether\n\n\x0cCASES & CRITIQUE\n\n107\n\nthe plaintiff\xe2\x80\x99s interests are entitled to legal protection against the defendant\xe2\x80\x99s conduct. Duty is not\nsacrosanct in itself, but only an expression of the sum total of those considerations of policy which\nlead the law to say that the particular plaintiff is entitled to protection.\xe2\x80\x9d\nIn the landmark case of Rowland v. Christian, 443 P.2d 561 (Cal. 1968), Justice Peters recognized\nthat liability should be imposed \xe2\x80\x9cfor injury occasioned to another by his want of ordinary care or\nskill\xe2\x80\x9d\xe2\x80\xa6. Thus, \xe2\x80\xa6whenever one person is by circumstances placed in such a position with regard to\nanother that if he did not use ordinary care and skill in his own conduct he would cause danger of\ninjury to the person or property of the other, a duty arises to use ordinary care and skill to avoid\nsuch danger.\nWe depart from this fundamental principle only upon the balancing of a number of\nconsiderations; major ones are the foreseeability of harm to the plaintiff, the degree of certainty that\nthe plaintiff suffered injury, the closeness of the connection between the defendant\xe2\x80\x99s conduct and\nthe injury suffered, the moral blame attached to the defendant\xe2\x80\x99s conduct, the policy of preventing\nfuture harm, the extent of the burden to the defendant and consequences to the community of\nimposing a duty to exercise care with resulting liability for breach, and the availability, cost and\nprevalence of insurance for the risk involved.\nThe most important of these considerations in establishing duty is foreseeability. As a general\nprinciple, a defendant owes a duty of care to all persons who are foreseeably endangered by his\nconduct, with respect to all risks which make the conduct unreasonably dangerous. As we shall\nexplain, however, when the avoidance of foreseeable harm requires a defendant to control the\nconduct of another person, or to warn of such conduct, the common law has traditionally imposed\nliability only if the defendant bears some special relationship to the dangerous person or to the\npotential victim. Since the relationship between a therapist and his patient satisfies this requirement,\nwe need not here decide whether foreseeability alone is sufficient to create a duty to exercise\nreasonable care to protect a potential victim of another\xe2\x80\x99s conduct.\nAlthough\xe2\x80\xa6as a general rule, one person owed no duty to control the conduct of another, nor to\nwarn those endangered by such conduct, the courts have carved out an exception to this rule in cases\nin which the defendant stands in some special relationship to either the person whose conduct needs\nto be controlled or in a relationship to the foreseeable victim of that conduct. Applying this\nexception to the present case, we note that a relationship of defendant therapists to either Tatiana\nor Poddar will suffice to establish a duty of care; as explained in section 315 of the Restatement\nSecond of Torts, a duty of care may arise from either \xe2\x80\x9c(a) a special relation between the actor and\nthe third person which imposes a duty upon the actor to control the third person\xe2\x80\x99s conduct, or (b) a\nspecial relation between the actor and the other which gives to the other a right of protection.\xe2\x80\x9d\nAlthough plaintiffs\xe2\x80\x99 pleadings assert no special relation between Tatiana and defendant\ntherapists, they establish as between Poddar and defendant therapists the special relation that arises\nbetween a patient and his doctor or psychotherapist. Such a relationship may support affirmative\nduties for the benefit of third persons. Thus, for example, a hospital must exercise reasonable care\nto control the behavior of a patient which may endanger other persons. A doctor must also warn a\npatient if the patient\xe2\x80\x99s condition or medication renders certain conduct, such as driving a car,\ndangerous to others.\nAlthough the California decisions that recognize this duty have involved cases in which the\ndefendant stood in a special relationship both to the victim and to the person whose conduct created\nthe danger, we do not think that the duty should logically be constricted to such situations. Decisions\nof other jurisdictions hold that the single relationship of a doctor to his patient is sufficient to\nsupport the duty to exercise reasonable care to protect others against dangers emanating from the\npatient\xe2\x80\x99s illness. The courts hold that a doctor is liable to persons infected by his patient if he\nnegligently fails to diagnose a contagious disease, or, having diagnosed the illness, fails to warn\nmembers of the patient\xe2\x80\x99s family.\nSince it involved a dangerous mental patient, the decision in Merchants Nat. Bank & Trust Co.\nof Fargo v. United States, 272 F. Supp. 409 (D.N.D. 1967), comes closer to the issue. The Veterans\nAdministration arranged for the patient to work on a local farm, but did not inform the farmer of\nthe man\xe2\x80\x99s background. The farmer consequently permitted the patient to come and go freely during\nnonworking hours; the patient borrowed a car, drove to his wife\xe2\x80\x99s residence and killed her.\n\n\x0c108\n\nTORT LAW\n\nNotwithstanding the lack of any \xe2\x80\x9cspecial relationship\xe2\x80\x9d between the Veterans Administration and\nthe wife, the court found the Veterans Administration liable for the wrongful death of the wife\xe2\x80\xa6.\nDefendants contend, however, that imposition of a duty to exercise reasonable care to protect\nthird persons is unworkable because therapists cannot accurately predict whether or not a patient\nwill resort to violence. In support of this argument amicus representing the American Psychiatric\nAssociation and other professional societies cites numerous articles which indicate that therapists,\nin the present state of the art, are unable reliably to predict violent acts; their forecasts, amicus claims,\ntend consistently to overpredict violence, and indeed are more often wrong than right. Since\npredictions of violence are often erroneous, amicus concludes, the courts should not render rulings\nthat predicate the liability of therapists upon the validity of such predictions\xe2\x80\xa6.\nWe recognize the difficulty that a therapist encounters in attempting to forecast whether a\npatient presents a serious danger of violence. Obviously, we do not require that the therapist, in\nmaking that determination, render a perfect performance; the therapist need only exercise that\nreasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of\nthat professional specialty under similar circumstances. Within the broad range of reasonable\npractice and treatment in which professional opinion and judgment may differ, the therapist is free\nto exercise his or her own best judgment without liability; proof, aided by hindsight, that he or she\njudged wrongly is insufficient to establish negligence.\nIn the instant case, however, the pleadings do not raise any question as to failure of defendant\ntherapists to predict that Poddar presented a serious danger of violence. On the contrary, the present\ncomplaints allege that defendant therapists did in fact predict that Poddar would kill, but were\nnegligent in failing to warn.\nAmicus contends, however, that even when a therapist does in fact predict that a patient poses a\nserious danger of violence to others, the therapist should be absolved of any responsibility for failing\nto act to protect the potential victim. In our view, however, once a therapist does in fact determine,\nor under applicable professional standards reasonably should have determined, that a patient poses\na serious danger of violence to others, he bears a duty to exercise reasonable care to protect the\nforeseeable victim of that danger. While the discharge of this duty of due care will necessarily vary\nwith the facts of each case,1 in each instance the adequacy of the therapist\xe2\x80\x99s conduct must be\nmeasured against the traditional negligence standard of the rendition of reasonable care under the\ncircumstances\xe2\x80\xa6.\nThe risk that unnecessary warnings may be given is a reasonable price to pay for the lives of\npossible victims that may be saved. We would hesitate to hold that the therapist who is aware that\nhis patient expects to attempt to assassinate the President of the United States would not be obligated\nto warn the authorities because the therapist cannot predict with accuracy that his patient will\ncommit the crime.\nDefendants further argue that free and open communication is essential to psychotherapy; that\nunless a patient is assured that information revealed by him can and will be held in utmost\nconfidence, he will be reluctant to make the full disclosure upon which diagnosis and treatment\ndepends. The giving of a warning, defendants contend, constitutes a breach of trust which entails\nthe revelation of confidential communications.\nWe recognize the public interest in supporting effective treatment of mental illness and in\nprotecting the rights of patients to privacy, and the consequent public importance of safeguarding\nthe confidential character of psychotherapeutic communication. Against this interest, however, we\nmust weigh the public interest in safety from violent assault. The Legislature has undertaken the\ndifficult task of balancing the countervailing concerns. In Evidence Code section 1014, it established\na broad rule of privilege to protect confidential communications between patient and\npsychotherapist. In Evidence Code section 1024, the Legislature created a specific and limited\n1\nDefendant therapists and amicus also argue that warnings must be given only in those cases in which the therapist\nknows the identity of the victim. We recognize that in some cases it would be unreasonable to require the therapist to\ninterrogate his patient to discover the victim\xe2\x80\x99s identity, or to conduct an independent investigation. But there may also be\ncases in which a moment\xe2\x80\x99s reflection will reveal the victim\xe2\x80\x99s identity. The matter thus is one which depends upon the\ncircumstances of each case, and should not be governed by any hard and fast rule.\n\n\x0cCASES & CRITIQUE\n\n109\n\nexception to the psychotherapist-patient privilege: \xe2\x80\x9cThere is no privilege if the psychotherapist has\nreasonable cause to believe that the patient is in such mental or emotional condition as to be\ndangerous to himself or to the person or property of another and that disclosure of the\ncommunication is necessary to prevent the threatened danger.\xe2\x80\x9d\nWe realize that the open and confidential character of psychotherapeutic dialogue encourages\npatients to express threats of violence, few of which are ever executed. Certainly a therapist should\nnot be encouraged routinely to reveal such threats; such disclosures could seriously disrupt the\npatient\xe2\x80\x99s relationship with his therapist and with the persons threatened. To the contrary, the\ntherapist\xe2\x80\x99s obligations to his patient require that he not disclose a confidence unless such disclosure\nis necessary to avert danger to others, and even then that he do so discreetly, and in a fashion that\nwould preserve the privacy of his patient to the fullest extent compatible with the prevention of the\nthreatened danger.\nThe revelation of a communication under the above circumstances is not a breach of trust or a\nviolation of professional ethics; as stated in the Principles of Medical Ethics of the American Medical\nAssociation (1957): \xe2\x80\x9cA physician may not reveal the confidence entrusted to him in the course of\nmedical attendance unless he is required to do so by law or unless it becomes necessary in order to\nprotect the welfare of the individual or of the community.\xe2\x80\x9d We conclude that the public policy\nfavoring protection of the confidential character of patient-psychotherapist communications must\nyield to the extent to which disclosure is essential to avert danger to others. The protective privilege\nends where the public peril begins.\nOur current crowded and computerized society compels the interdependence of its members. In\nthis risk-infested society we can hardly tolerate the further exposure to danger that would result\nfrom a concealed knowledge of the therapist that his patient was lethal. If the exercise of reasonable\ncare to protect the threatened victim requires the therapist to warn the endangered party or those\nwho can reasonably be expected to notify him, we see no sufficient societal interest that would\nprotect and justify concealment. The containment of such risks lies in the public interest. For the\nforegoing reasons, we find that plaintiffs\xe2\x80\x99 complaints can be amended to state a cause of action\nagainst defendants Moore, Powelson, Gold, and Yandell\xe2\x80\xa6for breach of a duty to exercise reasonable\ncare to protect Tatiana\xe2\x80\xa6.\nTurning now to the police defendants, we conclude that they do not have any such special\nrelationship to either Tatiana or to Poddar sufficient to impose upon such defendants a duty to warn\nrespecting Poddar\xe2\x80\x99s violent intentions. Plaintiffs suggest no theory, and plead no facts that give rise\nto any duty to warn on the part of the police defendants absent such a special relationship. They\nhave thus failed to demonstrate that the trial court erred in denying leave to amend as to the police\ndefendants\xe2\x80\xa6.\nMosk, Justice, concurring and dissenting:\nI concur in the result\xe2\x80\xa6only because the complaints allege that defendant therapists did in fact\npredict that Poddar would kill and were therefore negligent in failing to warn of that danger. Thus\nthe issue here is very narrow: we are not concerned with whether the therapists, pursuant to the\nstandards of their profession, \xe2\x80\x9cshould have\xe2\x80\x9d predicted potential violence; they allegedly did so in\nactuality. Under these limited circumstances I agree that a cause of action can be stated\xe2\x80\xa6.\nClark, Justice, dissenting:\n\xe2\x80\xa6Policy generally determines duty\xe2\x80\xa6. Overwhelming policy considerations weigh against\nimposing a duty on psychotherapists to warn a potential victim against harm. While offering\nvirtually no benefit to society, such a duty will frustrate psychiatric treatment, invade fundamental\npatient rights and increase violence\xe2\x80\xa6. Assurance of confidentiality is important for three reasons.\nFirst, without substantial assurance of confidentiality, those requiring treatment will be deterred\nfrom seeking assistance. It remains an unfortunate fact in our society that people seeking psychiatric\nguidance tend to become stigmatized. Apprehension of such stigma\xe2\x80\x94apparently increased by the\npropensity of people considering treatment to see themselves in the worst possible light\xe2\x80\x94creates a\nwell-recognized reluctance to seek aid. This reluctance is alleviated by the psychiatrist\xe2\x80\x99s assurance\nof confidentiality.\n\n\x0c110\n\nTORT LAW\n\nSecond, the guarantee of confidentiality is essential in eliciting the full disclosure necessary for\neffective treatment\xe2\x80\xa6. Until a patient can trust his psychiatrist not to violate their confidential\nrelationship, the unconscious psychological control mechanism of repression will prevent the recall\nof past experiences.\nThird, even if the patient fully discloses his thoughts, assurance that the confidential relationship\nwill not be breached is necessary to maintain his trust in his psychiatrist\xe2\x80\x94the very means by which\ntreatment is effected\xe2\x80\xa6. Patients will be helped only if they can form a trusting relationship with the\npsychiatrist\xe2\x80\xa6.\nGiven the importance of confidentiality to the practice of psychiatry, it becomes clear the duty\nto warn imposed by the majority will cripple the use and effectiveness of psychiatry. Many people,\npotentially violent\xe2\x80\x94yet susceptible to treatment\xe2\x80\x94will be deterred from seeking it; those seeking it\nwill be inhibited from making revelations necessary to effective treatment; and, forcing the\npsychiatrist to violate the patient\xe2\x80\x99s trust will destroy the interpersonal relationship by which\ntreatment is effected\xe2\x80\xa6.\nBy imposing a duty to warn, the majority contributes to the danger to society of violence by the\nmentally ill and greatly increases the risk of civil commitment\xe2\x80\x94the total deprivation of liberty\xe2\x80\x94of\nthose who should not be confined\xe2\x80\xa6.*\n1.\n\nQUESTIONS\nRelationship Status\xe2\x80\x94\xe2\x80\x9cIt\xe2\x80\x99s Complicated\xe2\x80\x9d: Is Tarasoff of the same kin as cases like\nOsterlind and Baker, which explore how certain special relationships can create\nexceptions to the general rule that there\xe2\x80\x99s no affirmative duty to protect or rescue? Or is\nthere something slightly different going on here?\n\n2.\n\nProfessionals and the Public: Why didn\xe2\x80\x99t the police officers owe the same duty to\nTarasoff as the therapists? And do you think other professionals should owe similar\nduties? How about clergy, teachers, parents, social workers, or lawyers? Why not extend\nthis type of duty to anyone who has a hunch about imminent physical violence?\n\n3.\n\nInstitutional Expertise: What do you think about judges playing this role of determining\nprofessional duties, even if they\xe2\x80\x99re aided by amici (as the court was here)? Do courts have\nthe information and abilities to develop a sensible plan to reduce the occurrence of\nviolent attacks by people with a mental illness? Is the legislature better positioned? Even\nif they are, can we trust them to regulate effectively in this area?\nGRAFF v. BEARD\nSupreme Court of Texas (1993)\n\nCornyn, Judge:\n\n\xc3\xa3\n\nWe are asked in this case to impose a common-law duty on a\nsocial host who makes alcohol available to an intoxicated adult\nguest who the host knows will be driving. For the reasons given\nbelow, we decline to do so\xe2\x80\xa6.\nHouston Moos consumed alcohol at a party hosted by the\nGraffs and Hausmons, and allegedly left in his vehicle in an\nintoxicated condition. En route from the party, Moos collided\n* A shocking illustration of psychotherapists\xe2\x80\x99 inability to predict dangerousness\xe2\x80\xa6is cited and discussed in Ennis,\nPrisoners of Psychiatry: Mental Patients, Psychiatrists, and the Law (1972): \xe2\x80\x9cIn a well-known study, psychiatrists predicted\nthat 989 persons were so dangerous that they could not be kept even in civil mental hospitals, but would have to be kept in\nmaximum security hospitals run by the Department of Corrections. Then, because of a United States Supreme Court decision,\nthose persons were transferred to civil hospitals. After a year, the Department of Mental Hygiene reported that one-fifth of\nthem had been discharged to the community, and over half had agreed to remain as voluntary patients. During the year, only\n7 of the 989 committed or threatened any act that was sufficiently dangerous to require retransfer to the maximum security\nhospital. Seven correct predictions out of almost a thousand is not a very impressive record. Other studies, and there are\nmany, have reached the same conclusion: psychiatrists simply cannot predict dangerous behavior.\xe2\x80\x9d\xe2\x80\xa6\n\xc3\xa3\nLaura LaRose, Beer Pong (CC BY 2.0).\n\n\x0cCASES & CRITIQUE\n\n111\n\nwith a motorcycle, injuring Brett Beard. Beard sued both Moos and his hosts for his injuries\xe2\x80\xa6. An\nen banc divided court of appeals reversed the trial court\xe2\x80\x99s judgment [against Beard]\xe2\x80\xa6, holding for\nthe first time in Texas jurisprudence that social hosts may be liable to third parties for the acts of\ntheir intoxicated adult guests.\nUnder the court of appeals\xe2\x80\x99 standard, a social host violates a legal duty to third parties when the\nhost makes an alcoholic beverage available to an adult guest who the host knows is intoxicated and\nwill be driving. In practical effect, this duty is twofold. The first aspect of the host\xe2\x80\x99s duty is to prevent\nguests who will be driving from becoming intoxicated. If the host fails to do so, however, a second\naspect of the duty comes into play\xe2\x80\x94the host must prevent the intoxicated guest from driving.\nThe legislatures in most states, including Texas, have enacted dram shop laws that impose a\nstatutory duty to third parties on commercial providers under specified circumstances. We have\nrecently held that when the legislature enacted the Texas dram shop statute it also imposed a duty\non the provider that extends to the patron himself. Because the dram shop statute applies only to\ncommercial providers, however, it does not govern the duty asserted in this case.\nWe think it significant in appraising Beard\xe2\x80\x99s request to recognize common-law social host\nliability that the legislature has considered and declined to create such a duty. A version of the bill\nthat eventually became our dram shop statute provided for social host liability. Although that\nversion passed the Senate, the House rejected it. The Senate-House conference committee deleted\nsocial host liability from the bill the legislature eventually enacted.\nThe highest courts in only four states have done what we are asked to do today: judicially impose\na duty to third parties on social hosts who make alcohol available to adult guests.1 In two of these\nstates, California and Iowa, the legislatures subsequently abrogated the judicially-created duty.\nNeither of the two remaining jurisdictions, Massachusetts and New Jersey, had dram shop statutes\nwhen their courts acted. Rather, their courts first imposed a common-law duty to third parties on\ncommercial establishments and then extended the duty to social hosts.\nIt is fundamental that the existence of a legally cognizable duty is a prerequisite to all tort liability.\nHistorically, the law recognized no common-law duty to third parties on the part of a provider of\nalcohol\xe2\x80\x94the rationale being that the consumption of alcohol, rather than the provision of it,\nproximately caused the injury. In El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex. 1987), this court\ncreated a common-law duty to injured third parties on the part of commercial providers, but that\nduty was almost simultaneously superseded by the legislature\xe2\x80\x99s enactment of the dram shop statute.\nThe statute became the exclusive basis for the civil liability of commercial providers of alcohol. The\nstatutory duty established by the legislature also placed a less onerous burden on commercial\nproviders and a correspondingly higher burden of proof on injured parties than the common-law\nduty created by the court: vendors were made legally accountable only when it was apparent at the\ntime the patron was served that the patron was \xe2\x80\x9cobviously intoxicated to the extent that he presented\na clear danger to himself and others.\xe2\x80\x9d It is against this backdrop that we consider whether a\ncommon-law duty for social hosts should be recognized in Texas.\nDeciding whether to impose a new common-law duty involves complex considerations of public\npolicy. We have said that these considerations include social, economic, and political questions, and\ntheir application to the particular facts at hand. Among other factors, we consider the extent of the\nrisk involved, the foreseeability and likelihood of injury weighed against the social utility of the\nactor\xe2\x80\x99s conduct, the magnitude of the burden of guarding against the injury, and the consequences\nof placing the burden on the defendant. We have also emphasized other factors. For example,\nquestions of duty have turned on whether one party has superior knowledge of the risk, and whether\na right to control the actor whose conduct precipitated the harm exists. See e.g., Seagram v. McGuire,\n814 S.W.2d 385 (Tex. 1991) (declining to recognize a legal duty of an alcohol manufacturer to warn\nconsumers against danger of alcoholism because the risk is common knowledge).\n\xe2\x80\xa6[W]e deem it appropriate to focus on two tacit assumptions underlying the holding of the\ncourt of appeals: that the social host can reasonably know of the guest\xe2\x80\x99s alcohol consumption and\n1\n\nThe majority of cases cited by Justice Gammage address only liability imposed on adults for the acts of intoxicated\nminors. E.g., Wiener v. Gamma Phi Chapter of Alpha Tau Omega Fraternity, 485 P.2d 18 (Or. 1971). Provision of alcohol to\nminors is not involved in this case.\n\n\x0c112\n\nTORT LAW\n\npossible intoxication, and possesses the right to control the conduct of the guest. Under Texas law,\nin the absence of a relationship between the parties giving rise to the right of control, one person is\nunder no legal duty to control the conduct of another, even if there exists the practical ability to do\nso. For example, in Otis Engineering Corp. v. Clark, 668 S.W.2d 307 (Tex. 1984), we held that an\nemployer breached a duty of care to the public when he directed an intoxicated employee to drive\nhome and the employee caused a fatal car crash. While we noted that there is no general duty to\ncontrol the conduct of another, we recognized a duty in that instance because of the employer\xe2\x80\x99s\nauthority over the employee\xe2\x80\xa6. [O]ur decision in Otis was premised on the employer\xe2\x80\x99s negligent\nexercise of control over the employee, rather than on a general duty to prevent intoxicated individuals\nfrom driving.\nInstead of focusing on the host\xe2\x80\x99s right of control over the guest, the court of appeals conditioned\na social host\xe2\x80\x99s duty on the host\xe2\x80\x99s \xe2\x80\x9cexclusive control\xe2\x80\x9d of the alcohol supply. The court defined\n\xe2\x80\x9cexclusive control,\xe2\x80\x9d however, as nothing more than a degree of control \xe2\x80\x9cgreater than that of the guest\nuser.\xe2\x80\x9d Under the court\xe2\x80\x99s definition, at a barbecue, a wedding reception, a back-yard picnic, a\npachanga, a Bar Mitzvah\xe2\x80\x94or a variety of other common social settings\xe2\x80\x94the host would always have\nexclusive control over the alcohol supply because the host chooses whether alcohol will be provided\nand the manner in which it will be provided. The duty imposed by the court of appeals would\napparently attach in any social setting in which alcohol is available regardless of the host\xe2\x80\x99s right to\ncontrol the guest. Thus, as a practical matter, the host has but one choice\xe2\x80\x94whether to make alcohol\navailable to guests at all.\nBut should the host venture to make alcohol available to adult guests, the court of appeals\xe2\x80\x99\nstandard would allow the host to avoid liability by cutting off the guest\xe2\x80\x99s access to alcohol at some\npoint before the guest becomes intoxicated. Implicit in that standard is the assumption that the\nreasonably careful host can accurately determine how much alcohol guests have consumed and\nwhen they have approached their limit. We believe, though, that it is far from clear that a social host\ncan reliably recognize a guest\xe2\x80\x99s level of intoxication. First, it is unlikely that a host can be expected\nto know how much alcohol, if any, a guest has consumed before the guest arrives on the host\xe2\x80\x99s\npremises. Second, in many social settings, the total number of guests present may practically inhibit\nthe host from discovering a guest\xe2\x80\x99s approaching intoxication. Third, the condition may be apparent\nin some people but certainly not in all. The point at which intoxication is reached varies from person\nto person, as do the signs of intoxication. One national study, for instance, found that of the drivers\nwith a blood alcohol concentration above 0.10%, the legal limit for driving in many states, only one\nhalf actually exhibited signs of intoxication. The guest, on the other hand, is in a far better position\nto know the amount of alcohol he has consumed, his state of sobriety, and the consequential risk he\nposes to the public.\nThis brings us to the second aspect of the duty implicit in the court of appeals\xe2\x80\x99 standard: that\nshould the guest become intoxicated, the host must prevent the guest from driving. Unlike the court\nof appeals, however, we cannot assume that guests will respond to a host\xe2\x80\x99s attempts, verbal or\nphysical, to prevent the guests from driving. Nor is it clear to us precisely what affirmative actions\nwould discharge the host\xe2\x80\x99s duty under the court of appeals\xe2\x80\x99 standard. Would a simple request not to\ndrive suffice? Or is more required? Is the host required to physically restrain the guests, take their\ncar keys, or disable their vehicles? The problems inherent in this aspect of the court of appeals\xe2\x80\x99\nholding are obvious. The implications of these unaddressed questions demonstrate the frail\nfoundation upon which the court of appeals has constructed social host liability.\nIdeally, guests will drink responsibly, and hosts will monitor their social functions to reduce the\nlikelihood of intoxication. Once a guest becomes impaired by alcohol to the point at which he\nbecomes a threat to himself and others, we would hope that the host can persuade the guest to take\npublic transportation, stay on the premises, or be transported home by an unimpaired driver. But\nwe know that too often reality conflicts with ideal behavior. And, given the ultimate power of guests\nto control their own alcohol consumption and the absence of any legal right of the host to control\nthe guest, we find the arguments for shifting legal responsibility from the guest to the host, who\nmerely makes alcohol available at social gatherings, unconvincing. As the common law has long\nrecognized, the imbiber maintains the ultimate power and thus the obligation to control his own\nbehavior: to decide to drink or not to drink, to drive or not to drive. We therefore conclude that the\n\n\x0cCASES & CRITIQUE\n\n113\n\ncommon law\xe2\x80\x99s focus should remain on the drinker as the person primarily responsible for his own\nbehavior and best able to avoid the foreseeable risks of that behavior\xe2\x80\xa6.\nGammage, Judge, dissenting:\n\xe2\x80\xa6The majority errs in holding that the legislature must \xe2\x80\x9ccreate\xe2\x80\x9d the duty for social hosts not to\nsend intoxicated guests driving in our streets to maim and kill. Logic, legal experience and this\ncourt\xe2\x80\x99s own earlier decisions dictate a contrary result. The legislature may enact a statute that creates\na duty. But the legislature\xe2\x80\x99s failure to act does not \xe2\x80\x9cun-create\xe2\x80\x9d an existing duty. A duty created by\nthe common law continues to exist unless and until the legislature changes it, and such an existing\ncommon law duty applies to the defendants here.\nConsider what earlier relevant Texas cases hold. First and foremost is El Chico Corp. v. Poole,\n732 S.W.2d 306 (Tex. 1987). Poole recognizes the common law duty of commercial vendors of\nalcoholic beverages not to serve patrons alcoholic beverages when the liquor licensee knew or should\nhave known that the patron was intoxicated and was going to drive a motor vehicle\xe2\x80\xa6. The majority\nfails to acknowledge Poole\xe2\x80\x99s rationale that the most important factor in recognizing a duty under the\ncommon law of negligence is the foreseeability of the risk\xe2\x80\xa6. Probably the most quotable line from\nPoole suggests the foreseeability here is analogous to letting a rattlesnake loose on an unsuspecting\npublic: \xe2\x80\x9cThe risk and likelihood of injury from serving alcohol to an intoxicated person whom the\nlicensee knows will probably drive a car is as readily foreseen as injury resulting from setting loose\na live rattlesnake in a shopping mall.\xe2\x80\x9d If we substitute \xe2\x80\x9csocial host\xe2\x80\x9d for \xe2\x80\x9clicensee,\xe2\x80\x9d the statement\nremains equally true\xe2\x80\xa6. In addressing the victims of DWI, it is clear the Poole analysis applies with\nequal strength to social hosts who engage in such dangerous conduct. Indeed,\nit is small comfort to the widow whose husband has been killed in an accident\ninvolving an intoxicated driver to learn that the driver received his drinks from a\nhospitable social host rather than by purchase at a bar. The danger of ultimate\nharm is as equally foreseeable to the reasonably perceptive host as to the\nbartender. The danger and risk to the potential victim on the highway is equally\nas great, regardless of the source of the liquor\xe2\x80\xa6.\nThe only difference between the commercial vendor and the social host is the relationship to the\nintoxicated driver. The risk and foreseeability of harm to the general public is the same. Balancing the\nrelationship factor, in determining whether a duty exists, must tip in favor of the public interest\xe2\x80\xa6.\nThe majority dismisses Otis Engineering on the ground it was \xe2\x80\x9cthe employer\xe2\x80\x99s negligent exercise of\ncontrol over the employee\xe2\x80\x9d that distinguishes the situation from the social host\xe2\x80\x99s position\xe2\x80\xa6. The\nposition of the social host is somewhat different, in that the host is serving alcohol to an intoxicated\nperson knowing he will drive. In Otis Engineering the control was over the sending (or driving),\nwhereas for the social host the control is over the furnishing of the intoxicating beverage. In either\ncase the risk is knowingly letting that rattlesnake loose on the public streets and highways. [We have]\nset forth the factors for determining whether to impose a duty and thereby recognize a negligence\ntort action: the risk, foreseeability, and likelihood of injury weighed against the social utility of the\nactor\xe2\x80\x99s conduct, the magnitude of the burden of guarding against the injury, and the consequences\nof placing the burden on the defendant, acknowledging foreseeability of the risk is the foremost and\ndominant consideration\xe2\x80\xa6. Instead of weighing all factors with an appropriate emphasis on this risk\nand its foreseeability, the majority selects two lesser factors favoring its desired result, and more or\nless dismisses the rest. Once again, both the legislature and the Poole decision have provided the\nanswer. Does the social utility of a host\xe2\x80\x99s providing liquor to an obviously intoxicated driver\noutweigh the foreseeability of risk? No, as both the Poole holding and the legislature\xe2\x80\x99s enactment of\na dram shop act demonstrate. The majority addresses the difficulty of guarding against injury, but\nit ignores the fact that the injury is a consequence of the intoxication. It is not significantly more\ndifficult for the social host to refuse to serve alcoholic beverages to the intoxicated guest than it is\nfor the bartender to refuse to sell to the drunken patron. Moreover, when the dram shop law\naddresses liability in the commercial context, but fails to address social host liability, the duty\nimposed upon this court to fill the illogical and unjust void in the law is even greater\xe2\x80\xa6.\n\n\x0c114\n\nTORT LAW\n\nThe majority dismisses what is perhaps the earliest social host common law duty holding in\nWiener v. Gamma Phi Chapter of Alpha Tau Omega Fraternity, 485 P.2d 18, 23 (Or. 1971), as one of\nthe \xe2\x80\x9conly a duty owed to minors\xe2\x80\x9d case. The Gamma Phi Chapter case did involve intoxication of a\nminor, but it was immaterial whether the third party who was injured in the accident, and to whom\nthe duty was owed, was injured by a minor or by an adult drunk. In fact, on a foreseeability analysis,\nit is just as foreseeable that an intoxicated adult driving a vehicle will cause third party injury as it is\nfor an intoxicated minor\xe2\x80\xa6. A rattlesnake is just as deadly, its bite just as lethal, whether it is a young\n\xe2\x80\x9cadolescent\xe2\x80\x9d rattlesnake or an older more mature rattlesnake. The duty to the driver on the highway\nto not set the venomous snake loose is the same\xe2\x80\xa6.\nThe majority confuses issues of proof with issues of whether to recognize the tort duty. The\nmajority is concerned that the social host might not be able to persuade or control his intoxicated\nguest to keep him or her from driving. The host, however, clearly does control whether alcohol is\nbeing served, and in what quantities and form. The answer to the \xe2\x80\x9cduty\xe2\x80\x9d question is that the host\nshould not let the driving guest have the alcohol in intoxicating quantities. If the guest becomes\ninebriated, however, just as with any other dangerous situation one helps create, the host has the\nduty to make every reasonable effort to keep the dangerously intoxicated guest from driving. If the\nguest resists those efforts, then there is a question for the factfinder to resolve whether the host\xe2\x80\x99s\nefforts were all that reasonably could be done under the circumstances.\nThe majority expresses concern that \xe2\x80\x9cthe reasonably careful host\xe2\x80\x9d may not be able to detect when\nsome guests are intoxicated\xe2\x80\xa6. If that is so, then the factfinder should have no difficulty determining\nthat the host did not serve them while they were \xe2\x80\x9cobviously intoxicated.\xe2\x80\x9d The majority further\nasserts\xe2\x80\xa6that the \xe2\x80\x9cguest\xe2\x80\xa6is in a far better position to know the amount of alcohol he has consumed\xe2\x80\x9d\nthan the host\xe2\x80\xa6. This assertion defies common sense, because from personal observation we know\nthat most persons, as they become intoxicated, along with losing their dexterity and responsive\nmental faculties, gradually become less and less cognizant of how much they\xe2\x80\x99ve had and how badly\nintoxicated they are\xe2\x80\xa6. Intoxicated guests need someone to tell them not to drive. It bears repeating\nthat, if the guest did not appear intoxicated, the factfinder should have no trouble concluding that\nthe host did not serve alcohol to an obviously intoxicated person.\nIf circumstances do not permit the social host to adequately monitor and control the quantity of\nalcoholic beverages a guest consumes, the host still retains absolute control over whether alcoholic\nbeverages should be served at all. Lest there be some fear that recognizing social host liability will\nimpair the celebrity of every backyard barbecue in Texas, it should not, and its effect should be\nsalubrious. Moreover, it should be remembered that the innocent and sober guest en route to the\nparty is entitled to the same legal protection from a drunken and dangerous departing guest as any\nother member of the driving public\xe2\x80\xa6.\nThe majority seeks to\xe2\x80\xa6stop the evolving common law dead in its tracks. Virtually all\njurisdictions have discarded that obsolete \xe2\x80\x9cdrinker\xe2\x80\x99s fault only\xe2\x80\x9d rationale and provided meaningful\ndoctrines to protect the public from rattlesnakes in its midst\xe2\x80\xa6. This court should\xe2\x80\xa6keep both sets\nof rattlesnakes\xe2\x80\x94those created by commercial vendors, and those created by social hosts\xe2\x80\x94off our\npublic streets and highways. The drunk who causes the accident is not excused from liability because\nthe social host who intoxicated him is also responsible. All culpable parties should be liable\xe2\x80\x94the\nsocial host who knowingly intoxicated the guest and the guest who drunkenly caused the accident\xe2\x80\xa6.\nThe television commercial says, \xe2\x80\x9cFriends don\xe2\x80\x99t let friends drive drunk.\xe2\x80\x9d That is sound public policy.\nBut today the majority says, \xe2\x80\x9cIntoxicate your friends and send them out upon the public streets and\nhighways to drive drunk. Don\xe2\x80\x99t worry, you won\xe2\x80\x99t be liable.\xe2\x80\x9d That is, in the kindest term I can muster,\nunsound policy\xe2\x80\xa6.\n1.\n\n2.\n\nQUESTIONS\nBoozy Chaperone: Should adults who supply alcohol to minors owe a legal duty to third\nparties who are then injured when the minor drives drunk? Should you owe a similar\nduty if you lend your twenty-year-old sibling your ID on a Friday night? How do your\nanswers to these questions fit with how you see the Graff decision?\nBartender, Pour Me Another: The dissent argues that it\xe2\x80\x99s \xe2\x80\x9cnot significantly more\ndifficult for the social host to refuse to serve alcoholic beverages to the intoxicated guest\n\n\x0cCASES & CRITIQUE\n\n115\n\nthan it is for the bartender to refuse to sell to the drunken patron.\xe2\x80\x9d Do you agree? Is it\neasier in some ways and harder in others? How much should the law be influenced by\nphenomena like social awkwardness and peer pressure?\n3.\n\nHostess with the Mostess: The majority tells us that Massachusetts and New Jersey\nrecognize that social hosts who make alcohol available to guests owe a duty to third\nparties, whereas California and Iowa don\xe2\x80\x99t. Do you think people have less fun at parties\nin Boston and Trenton than in Sacramento and Des Moines? Do they host fewer parties?\nDo they fall out with their friends more often? What effects are these legal deviations\nlikely to have on peoples\xe2\x80\x99 lives?\n\nC. Breach\nMARTIN v. EVANS\nSupreme Court of Pennsylvania (1998)\nNewman, Justice:\n\n\xc3\xa3\n\n\xe2\x80\xa6This personal injury suit arose from an accident in\nwhich [Weldon] Evans\xe2\x80\x99 tractor-trailer backed into Appellee\nAnthony Martin. The parties presented conflicting testimony\nrelating directly to the issue of Evans\xe2\x80\x99 negligence, and the jury\nconcluded that Evans was not negligent. Because the verdict\nrested on a credibility determination, we hold that the trial\ncourt usurped the jury\xe2\x80\x99s responsibility by disregarding its\nfinding that Evans was not negligent\xe2\x80\xa6and reinstate the jury\xe2\x80\x99s\nverdict\xe2\x80\xa6.\nOn May 24, 1989, Evans was driving a tractor-trailer that was forty-five feet long, eight feet wide\nand thirteen feet, six inches tall\xe2\x80\xa6. [H]e pulled into the Canonsburg rest stop. Along the left-hand\nside of the parking lot, there were parallel parking spots for trucks. Evans pulled his truck into what\nhe believed to be the last parallel parking spot in that row. Because it was the last spot, he had to\nangle the cab of the truck to the trailer to maneuver the truck into the space.\nEvans left the truck running, and went to the restrooms. When he returned, he looked in back\nof the truck before he got into the cab and noticed that no one was parked behind him. He recorded\nthe stop in his logbook, which took approximately two minutes, then he prepared to back up. Evans\ntestified that he put the truck into reverse and released both the emergency brake for the cab and the\nemergency brake for the tractor. When released, the emergency brakes emit a hissing sound that\nlasts for about two seconds. He activated his four-way flashers, which are similar to an automobile\xe2\x80\x99s\nhazard lights. Then he looked through the side-view mirrors, but because of the angle of the truck\nand the length of the trailer, he could not see directly behind him. He reversed the truck \xe2\x80\x9cslower\nthan you could walk\xe2\x80\x9d until he felt a nudge and saw someone waving at him to stop. He stopped the\ntruck and through his right-hand rear view mirror he saw someone fall just to the right, rear of his\ntruck. When he got out of his truck to investigate, Evans saw Martin lying on the ground.\nMartin and Rochester Steverson were driving southbound on Interstate 79 on May 24, 1989,\nwhen they, too, stopped at the Canonsburg rest area. Their truck was an Isuzu box truck that was\nabout twenty feet long and ten feet wide. The driver of the truck parked approximately seven to ten\nfeet directly behind Evans\xe2\x80\x99 tractor-trailer. Martin was either walking or standing between the Isuzu\ntruck and Evans\xe2\x80\x99 tractor-trailer when the tractor-trailer began to back into him. He claimed that he\ntried to get out of the way but was unable to do so. He became pinned between the two vehicles.\nOnce he realized what was happening, Steverson put the Isuzu truck into reverse to free Martin, who\nfell to the ground. Martin suffered injuries to his right arm and back. As result, Martin brought a\nnegligence action against Evans\xe2\x80\xa6.\n\n\xc3\xa3\n\nCarl Spencer, Renault Magnum \xe2\x80\x93 Reversing (CC BY-NC 2.0).\n\n\x0c116\n\nTORT LAW\n\n[At trial, the] parties presented conflicting testimony concerning the circumstances surrounding\nthe accident. The trial court instructed the jury on negligence, contributory negligence, and\ncomparative negligence. The court presented the following interrogatories to the jury\xe2\x80\xa6:\nQuestion 1a\nDo you find that defendant Weldon R. Evans was negligent?\nYes ____ No ____\nIf you answered \xe2\x80\x9cYes\xe2\x80\x9d to Question 1a, go on to Question 1b. If you answered \xe2\x80\x9cNo\xe2\x80\x9d\nto Question 1a, the plaintiff cannot recover and you should not answer any further\nquestions and should return to the courtroom.\nQuestion 1b\nWas the defendant\xe2\x80\x99s negligence a substantial factor in bringing about the\nplaintiff\xe2\x80\x99s harm?\nYes ____ No ____\nIf you answered \xe2\x80\x9cYes\xe2\x80\x9d to Question 1b, go on to Question 2a. If you answered \xe2\x80\x9cNo\xe2\x80\x9d\nto Question 1b, the plaintiff cannot recover and you should not answer any further\nquestions and should return to the courtroom.\nQuestion 2a\nDo you find that plaintiff Anthony Martin was contributorily negligent?\nYes ____ No ____\nIf you answered \xe2\x80\x9cYes\xe2\x80\x9d to Question 2a, go on to Question 2b. If you answered \xe2\x80\x9cNo\xe2\x80\x9d\nto Question 2a, go on to Question 4.\nQuestion 2b\nWas plaintiff\xe2\x80\x99s contributory negligence a substantial factor in bringing about his\nharm?\nYes ____ No ____\nIf you answered \xe2\x80\x9cYes\xe2\x80\x9d to Question 2b, go on to Question 3. If you answered \xe2\x80\x9cNo\xe2\x80\x9d\nto Question 2b, go on to Question 4.\nThe jury answered \xe2\x80\x9cNo\xe2\x80\x9d to Question 1a, therefore, did not answer the remaining questions. The trial\ncourt molded the jury\xe2\x80\x99s answer into a verdict in favor of Appellants.\nMartin moved for a new trial. The trial court granted the motion on the grounds that the jury\xe2\x80\x99s\nverdict \xe2\x80\x9cshocked the Court\xe2\x80\x99s sense of justice.\xe2\x80\x9d The court reasoned that because Evans sat in his truck\nfor \xe2\x80\x9ca couple of minutes\xe2\x80\x9d before backing up, he was aware that there were blind spots in his mirrors\nsuch that he was unable to see directly behind his vehicle, and it was a busy rest area and likely that\na pedestrian or vehicle could stand or park directly behind him, the jury\xe2\x80\x99s verdict that Evans was not\nnegligent was unacceptable.\nEvans appealed to the Superior Court, which concluded\xe2\x80\xa6that the trial court properly granted a\nnew trial, and thus affirmed. This Court [heard Evans\xe2\x80\x99s appeal] to determine whether the trial court\nabused its discretion in granting a new trial where the parties presented conflicting testimony that\nrequired a credibility determination. We now reverse.\nA new trial is warranted when the jury\xe2\x80\x99s verdict is so contrary to the evidence that it shocks one\xe2\x80\x99s\nsense of justice\xe2\x80\xa6. Negligence is the absence of ordinary care that a reasonably prudent person would\nexercise in the same or similar circumstances. The mere occurrence of an accident does not establish\nnegligent conduct. Rather, the plaintiff has the burden of establishing, by a preponderance of the\nevidence, that the defendant engaged in conduct that deviated from the general standard of care\nexpected under the circumstances, and that this deviation proximately caused actual harm.\nThe trial court instructed the jury with regard to the definition of negligence as follows:\n\n\x0cCASES & CRITIQUE\n\n117\n\nThe legal term, negligence, otherwise known as carelessness, is the absence of\nordinary care which a reasonably prudent person would exercise in the\ncircumstances here presented.\nNegligent conduct may consist either of an act or an omission to act when\nthere is a duty to do so. In other words, negligence is the failure to do something\nwhich a reasonably careful person would do, or the doing of something which a\nreasonably careful person would not do in light of all the surrounding\ncircumstances established by the evidence in this case. It is for you to determine\nhow a reasonably careful person would act in those circumstances.\nNow, I told you in defining negligence that part of that definition was absence\nof ordinary care. I want to define ordinary care for you. Ordinary care is the care\na reasonably careful person would use under the circumstances presented in this\ncase. It is the duty of every person to use ordinary care not only for his own safety\nand the protection of his property, but also to avoid injury to others. What\nconstitutes ordinary care varies according to the particular circumstances and\nconditions existing then and there. The amount of care required by law must be\nin keeping with the degree of danger involved.\nThus, the trial court called upon the jury to evaluate the testimony and decide whether Evans\nexercised ordinary care under the circumstances.\nThe evidence presented to the jury on the issue of whether Evans was negligent in the operation\nof his vehicle was contradictory in several respects, including: (1) whether Evans took the necessary\nprecautions prior to moving his tractor-trailer in reverse, specifically, whether he activated his fourway flashers and released the emergency brakes which emit a loud hissing sound; (2) whether Martin\nor Steverson was driving the Isuzu truck; (3) whether Martin was parked in a legal parking space;\nand (4) Martin\xe2\x80\x99s position when the incident occurred.\nEvans testified that when he pulled into the Canonsburg rest area, he parked in what he believed\nto be the last legal parking space in that particular row. As proof of this, he stated that he had to park\nat an angle to fit his tractor-trailer into the lines. When he returned from the restrooms, he claimed\nthat no one was parked behind him. He knew that he only had to back up a couple of feet to be able\nto pull out of the space. After he made a recording in his logbook, he put in the clutch, put the truck\ninto low reverse, activated his four-way flashers, and checked his mirrors. Evans further stated that\nalthough he could not see directly behind him at that moment, he kept his eye on the right mirror\nbecause he knew he would be able to see out of that side first. According to Evans, he moved his\ntractor-trailer backwards \xe2\x80\x9cslower than you could walk.\xe2\x80\x9d When he felt a nudge and saw someone\nwaving at him to stop in his rear view mirror, he stopped instantly.\nMartin testified that he was driving the Isuzu truck southbound on Interstate 79 on May 24,\n1989, despite the fact that he did not have a valid driver\xe2\x80\x99s license at that time. He claimed that he\nsaw his brother Neil Martin, who waved to him to pull off at the next rest area. He stated that he\npulled into the last parking space and parked approximately ten feet behind the tractor-trailer and\nturned off the ignition. Then, after about a minute and a half, he exited the truck and walked between\nthe front of his vehicle and the tractor-trailer. He proceeded about two-thirds of the width of the\ntractor-trailer when he realized that the tractor-trailer was moving towards him. He testified that he\ndid not hear the truck\xe2\x80\x99s engine or the release of the emergency brakes, nor did he see any flashing\nlights from the back of the tractor-trailer. After the tractor-trailer pushed him up against the Isuzu\ntruck, he claimed that Steverson jumped into the truck, started it, and put it in reverse, at which\npoint Martin fell to the ground. Neil Martin corroborated this version of the events.\nSteverson, on the other hand, claimed that he, not Martin, had been driving the truck. Steverson\ntestified that he parked the truck approximately ten feet behind the tractor-trailer and turned off the\nignition. According to Steverson, Martin got out of the passenger\xe2\x80\x99s seat, and walked in front of the\nIsuzu truck and leaned against it while talking to his brother, Neil, for a couple of minutes. When\nSteverson realized that the tractor-trailer was moving towards them and that Martin was caught\nbetween the two, he started the truck and put it in reverse.\n\n\x0c118\n\nTORT LAW\n\nState Police Trooper Dennis Spirk, who arrived at the scene of the accident to investigate,\ntestified that he interviewed Evans, Steverson and Anthony Martin concerning how the accident\noccurred. When questioned by Trooper Spirk, Evans stated that when he returned from the\nrestrooms he walked around the back of his truck before he got into the cab, and that from the cab\nhe did not see anything behind him. Trooper Spirk stated that Steverson indicated that he was the\ndriver of the smaller truck. In response to questioning, Anthony Martin told Trooper Spirk that he\nwas standing between the two trucks, with his back to the tractor-trailer and facing the truck he had\njust exited, when the tractor-trailer backed up and hit him.\nCredibility determinations are within the sole province of the jury. A jury is entitled to believe\nall, part or none of the evidence presented. A jury can believe any part of a witness\xe2\x80\x99 testimony that\nthey choose, and may disregard any portion of the testimony that they disbelieve. Consequently,\nbecause of the conflicting versions of the events surrounding the accident, it was the jury\xe2\x80\x99s duty to\nmake a credibility determination and to decide whether Evans exercised ordinary care under the\ncircumstances. The jury obviously chose to believe Evans and Steverson, and found that Evans was\nnot negligent.\nHowever, the trial court concluded that \xe2\x80\x9cunder all of the facts and circumstances of this case,\neven when viewed most favorably to the verdict winner, this Court cannot accept the jury\xe2\x80\x99s\nconclusion that Evans was not negligent.\xe2\x80\x9d In support of its conclusion, the trial court cited evidence\nsupporting the fact that Evans made no effort during the two minutes after he entered his cab and\nprior to putting his truck in motion, to determine if there was anyone or anything behind his vehicle.\nThis, coupled with the facts that the rest area was busy and there were \xe2\x80\x9cblind spots\xe2\x80\x9d in the mirrors,\ncaused the trial court to reach its conclusion.\nHowever, the evidence equally supports a finding that Evans exercised ordinary care under the\ncircumstances. Evans testified that he parked in what he believed to be the last legal parking space\nin the row. In fact, he stated that he had to park his tractor-trailer with the cab at an angle to the\ntrailer because it was the last spot and there was barely enough room for his vehicle. When he\nreturned to his truck, no one was parked behind him. Before backing up, he activated his four-way\nflashers and released his emergency brakes, which he knew made a loud hissing sound. Then, he\nproceeded to move the truck backwards \xe2\x80\x9cslower than you could walk.\xe2\x80\x9d Therefore, if the jury were to\nbelieve Evans\xe2\x80\x99 account of the events, he took the necessary precautions required by the\ncircumstances and proceeded with care.\nA resolution of whether Evans was negligent relied upon a credibility determination and the\njury\xe2\x80\x99s assessment of what constituted ordinary care under the circumstances. Because this\nassessment was solely within the province of the jury, the trial court was not at liberty to reassess the\nevidence and make its own credibility determinations simply because it would have reached a\ndifferent conclusion. Accordingly, we hold that the trial court abused its discretion by disregarding\nthe jury\xe2\x80\x99s credibility determination and substituting its own. The verdict was not so contrary to the\nevidence so as to shock one\xe2\x80\x99s sense of justice. We reverse and reinstate the jury\xe2\x80\x99s verdict.\n1.\n\nQUESTIONS\nJury Duty: Set aside the court\xe2\x80\x99s legal analysis for a moment and focus only on the facts.\nIf you were a juror in this case, how would you have voted? Did Evans show ordinary\ncare? Had you been in Evans\xe2\x80\x99s position, would you have reversed the truck in the same\nway? Are those last two questions synonymous?\n\n2.\n\nJudicial Paternalism: The trial judge wiped out the jury\xe2\x80\x99s verdict because its answer to\nthe breach question \xe2\x80\x9cshocked the Court\xe2\x80\x99s sense of justice.\xe2\x80\x9d When the issue on the table\nis \xe2\x80\x9cordinary care,\xe2\x80\x9d should the judge ever second-guess the jury? Is one person in a robe\never justified in overruling what twelve citizens conclude a \xe2\x80\x9creasonably prudent person\xe2\x80\x9d\nwould do under the circumstances?\n\n3.\n\nJumping the Gun: Did the jurors in Martin perhaps get ahead of themselves? Maybe\nthey felt that, although Evans failed to show ordinary care, Martin was also careless in\nstanding behind the truck or ignoring the flashing lights. If that\xe2\x80\x99s what they thought,\nshould they have answered the questions differently? Would it have made a difference?\n\n\x0cCASES & CRITIQUE\n\n119\n\nPINGARO v. ROSSI\nSuperior Court of New Jersey, Appellate Division (1999)\nHavey, Judge:\n\n\xc3\xa3\n\nA jury awarded $300,000 in damages to plaintiff Ellen Pingaro, a\nmeter reader for defendant New Jersey Natural Gas Company (NJNG),\nfor injuries she sustained as a result of a dog bite she suffered from a\nGerman Shepherd owned by defendant Joseph Rossi\xe2\x80\xa6.\n[O]n June 27, 1996, [Pingaro was] performing her meter reading\nduties\xe2\x80\xa6. When she arrived at Rossi\xe2\x80\x99s house, her data cap, a hand-held\ncomputer, \xe2\x80\x9cbeeped\xe2\x80\x9d a message: \xe2\x80\x9cbad dog, knock.\xe2\x80\x9d The data cap provides\nthe meter reader with the name of the street and location of the meter and\nat times displays specialized messages pertaining to the customer, such as\nwhether a \xe2\x80\x9cbad dog\xe2\x80\x9d may be present.\nAccording to plaintiff, she had never been to Rossi\xe2\x80\x99s home before. She\nknocked on Rossi\xe2\x80\x99s door but received no answer. She proceeded to the\nfenced-in backyard, rattled the gate and her keys and yelled \xe2\x80\x9cgas company.\xe2\x80\x9d There was no response.\nShe looked around the backyard for dogs or other animals. After satisfying herself that the yard was\nclear, she unhooked the gate and walked towards the meter. Immediately upon entering the back\nyard two dogs approached her. One dog, a large German Shepard, jumped up, knocked her down\nand bit her on both arms, legs and head. She subdued the dog by hitting it with her flashlight, exited\nthe yard and called for help. A nearby construction worker summoned an ambulance which took\nher to Community Medical Center where she received numerous stitches and was released later that\nafternoon. [She required physical therapy and was out of work for six weeks. She also suffered scars\non her arms and legs, as well as anxiety, fear, and depression related to the incident.]\xe2\x80\xa6\nRossi testified that the dog which attacked plaintiff was kept fenced in his backyard. The only\ngate to the backyard was the gate utilized by plaintiff in entering the yard. He stated that a large\n\xe2\x80\x9cBeware of Dog\xe2\x80\x9d sign was posted on the gate.\nAccording to Rossi, over the course of ten years he had spoken with several meter readers about\nhis dog and told them they should not enter his yard if no one was home. The meter readers\nresponded that they would comply with his request. Rossi noted that this arrangement had worked\nfor over ten years, and when he was not at home the meter readers would estimate his bill, leave a\ncard for him to mail in or come back at a later date\xe2\x80\xa6.\nThe so-called \xe2\x80\x9cdog bite\xe2\x80\x9d statute, N.J.S.A. \xc2\xa7 4:19-16, reads in pertinent part:\nThe owner of any dog which shall bite a person while such person is on or in a\npublic place, or lawfully on or in a private place, including the property of the\nowner of the dog, shall be liable for such damages as may be suffered by the person\nbitten, regardless of the former viciousness of such dog or the owner\xe2\x80\x99s knowledge\nof such viciousness.\nThere is no question that plaintiff fulfilled the three elements necessary to establish Rossi\xe2\x80\x99s\nliability under the statute. Rossi was the owner of the dog, the dog bit plaintiff and the bite occurred\nwhile plaintiff was lawfully on Rossi\xe2\x80\x99s property. Satisfaction of the elements of the statute imposes\nstrict liability upon Rossi for damages sustained by plaintiff\xe2\x80\xa6. In order for plaintiff to prevail under\nthe \xe2\x80\x9cdog-bite\xe2\x80\x9d statute, she need not prove scienter; that is, that Rossi knew of the dog\xe2\x80\x99s dangerous\npropensities\xe2\x80\xa6.\n1.\n\n\xc3\xa3\n\nQUESTIONS\nBarking Up the Wrong Tree: Rossi offered evidence about the steps he took to ensure\nthat his dog didn\xe2\x80\x99t bite visitors to his home. Do you think he showed ordinary care? Do\nyou see why the answer to that question is legally irrelevant here?\n\nJJ Look, 1 Pound of Fury (CC BY-NC-ND 2.0).\n\n\x0c120\n\nTORT LAW\n\n2.\n\nWhat\xe2\x80\x99s Tort Law Up To? Is New Jersey\xe2\x80\x99s \xe2\x80\x9cdog bite\xe2\x80\x9d statute fair? Does it create good\nincentives? How is it likely to affect behavior in the state? How does it affect the legal\nprocess of tort law to impose strict liability instead of ordinary negligence liability?\nCAMPBELL v. KOVICH\nCourt of Appeals of Michigan (2006)\n\nPer curiam:\n\n\xc3\xa3\n\n\xe2\x80\xa6Karie [Campbell] was struck in the eye by an unknown,\nunrecovered object that she alleges was ejected from a lawn mower\nbeing operated by Ashton [Minish], who was mowing the Koviches\xe2\x80\x99\nlawn. [After Karie sued Ashton and the Koviches for negligence, the\ntrial court granted the defendants\xe2\x80\x99 motion for summary disposition.]\xe2\x80\xa6\n[P]laintiffs contend that they presented sufficient evidence to\nestablish that Ashton breached duties he owed in this case. We\ndisagree\xe2\x80\xa6. [N]o Michigan authority specifically address[es] what\ndegree of care a person mowing a lawn must exercise. In Gore v. Ohio\nDep\xe2\x80\x99t of Transportation, 774 N.E.2d 817 (Ohio Ct. Cl., 2002), a\nlimousine passenger brought an action against the Ohio Department of\nTransportation (ODOT) as the employer of an independent contractor\nthat mowed grass on a highway median, alleging that ODOT was liable\nfor injuries she sustained when a piece of rubber thrown from a mower struck her in the head. On\nODOT\xe2\x80\x99s motion for summary judgment, the court held that ODOT was not liable for the\nindependent contractor\xe2\x80\x99s negligence. The court also reasoned that \xe2\x80\x9cremoving debris from the\nmower\xe2\x80\x99s path is a routine precaution, which any careful contractor could be expected to take in the\nexercise of ordinary care.\xe2\x80\x9d Thus, Ohio authority persuasively suggests that inspecting a mower\xe2\x80\x99s path\nis what ordinary care requires.\nAdopting the Ohio requirement for ordinary care as our own, there is insufficient evidence that\nAshton failed to exercise reasonable care. On September 14, 2004, before mowing the Koviches\xe2\x80\x99\nlawn, Ashton inspected the lawn for a couple of minutes. Karie admitted that while Ashton was\nmowing the lawn, he was not doing anything unusual, but was merely pushing the lawn mower, and\nthat he did not appear to be in a hurry and appeared to be watching where he was walking. Before\nKarie was struck, Ashton was watching the area in front of him, and he did not see anything in front\nof the lawn mower. Karie also acknowledged in her deposition that Ashton never acknowledged that\nhe had mowed over anything. Under these facts, there is no genuine issue of material fact regarding\nwhether Ashton exercised reasonable care in the operation of the lawn mower\xe2\x80\xa6.\nAshton was not required to exercise extraordinary care. Ordinarily prudent people, when\nmowing a lawn, do not go to such extraordinary lengths that they do more than a brief inspection\nof the lawn before mowing, avoid mowing altogether when other persons are within 75 feet, mow\nonly under close parental supervision, or look anywhere but ahead of where they are going while\nmowing. The evidence suggests that Ashton exercised ordinary care, but an accident of unclear\ncausation occurred. Viewing the evidence in a light most favorable to plaintiffs, reasonable minds\ncould not disagree that Ashton exercised due care. Accordingly, the trial court did not err in granting\nsummary disposition to Ashton\xe2\x80\xa6.\n1.\n2.\n\n\xc3\xa3\n\nQUESTIONS\nGrass Is Always Greener: Could Ashton have done anything to make his mowing safer?\nIf so, why doesn\xe2\x80\x99t the court hold him responsible for not taking those precautions?\nDuty versus Breach: Are you starting to see the relationship between duty and breach?\nWhen defendants deny that they owed a duty, what are they saying about their need to\n\nTroy B. Thompson, Mowing Concentration (CC BY-NC-ND 2.0).\n\n\x0cCASES & CRITIQUE\n\n121\n\ntake care? When they deny that they breached a duty, what are they saying about the\ncare they took? How does foreseeability play a key, yet distinct, role in each element?\nZAP PROBLEM\nTwelve-year-old Jameela is swinging a piece of metal wire while she\xe2\x80\x99s walking over a pedestrian\nbridge above Amtrak\xe2\x80\x99s railroad tracks. Jameela\xe2\x80\x99s wire, which is around eight feet long, brushes\nagainst an electric wire that Amtrak concealed beneath the bridge nearly five feet below the pathway\nwhere pedestrians walk. When the two wires touch, Jameela suffers serious electrical burns. She sues\nfor negligence. In its defense, Amtrak introduces uncontroverted evidence that nobody standing on\nthe bridge could see or reach Amtrak\xe2\x80\x99s wire. An expert electrician also testifies that insulating\nAmtrak\xe2\x80\x99s wires would make them ineffective. A safer alternative would be to bury the wires\nunderground, but that costly and difficult process would take years to complete.\n(a)\n(b)\n(c)\n(d)\n\nDid Amtrak owe Jameela a duty? If so, would it be a duty of ordinary or extraordinary care?\nAssuming there\xe2\x80\x99s a duty, was there a breach of due care?\nIn determining breach, would foreseeability play any role?\nShould it matter whether it was customary in the railroad industry to place wires beneath\nbridges in this manner?\n(e) Should we care how hard or expensive safer measures would be for Amtrak to adopt?\n(f) Is it relevant if Amtrak\xe2\x80\x99s wiring complied with or violated relevant safety regulations?\n\nFARDELL v. POTTS\nCourt of Appeal of England and Wales (1924)\nThe Master of the Rolls:\n\n\xc3\xa3\n\nThe Court of Appeal to-day delivered judgment\nin this important case\xe2\x80\xa6.\nIn this case the appellant was a Mrs. Fardell, a\nwoman, who, while navigating a motor-launch on the\nRiver Thames collided with the respondent, who was\nnavigating a punt, as a result of which the respondent\nwas immersed and caught cold. The respondent\nbrought an action for damages, in which it was\nalleged that the collision and subsequent immersion\nwere caused by the negligent navigation of the appellant. In the Court below the learned judge\ndecided that there was evidence on which the jury might find that the defendant had not taken\nreasonable care, and, being of that opinion, very properly left to the Jury the question whether in\nfact she had failed to use reasonable care or not. The jury found for the plaintiff and awarded him\ntwo hundred and fifty pounds damages. This verdict we are asked to set aside on the ground of\nmisdirection by the learned judge, the contention being that the case should never have been allowed\nto go to the Jury; and this contention is supported by a somewhat novel proposition, which has been\nably, though tediously, argued by Sir Ethelred Rutt.\nThe Common Law of England has been laboriously built about a mythical figure\xe2\x80\x94the figure of\n\xe2\x80\x98The Reasonable Man\xe2\x80\x99. In the field of jurisprudence this legendary individual occupies the place\nwhich in another science is held by the Economic Man, and in social and political discussions by the\nAverage or Plain Man. He is an ideal, a standard, the embodiment of all those qualities which we\ndemand of the good citizen. No matter what may be the particular department of human life which\nfalls to be considered in these Courts, sooner or later we have to face the question: Was this or was\nit not the conduct of a reasonable man? Did the defendant take such care to avoid shooting the\n\xc3\xa3\n\nA.P. Herbert, Fardell v. Potts: The Reasonable Man, PUNCH (July 9, 1924); Michiel, Old Postcards of London (CC BY 2.0).\n\n\x0c122\n\nTORT LAW\n\nplaintiff in the stomach as might reasonably be expected of a reasonable man? (Moocat v.\nRadley (1883) 2 Q.B.) Did the plaintiff take such precautions to inform himself of the circumstances\nas any reasonable man would expect of an ordinary person having the ordinary knowledge of an\nordinary person of the habits of wild bulls when goaded with garden-forks and the persistent\nagitation of red flags? (Williams v. Dogbody (1841) 2 A.C.)\nI need not multiply examples. It is impossible to travel anywhere or to travel for long in that\nconfusing forest of learned judgments which constitutes the Common Law of England without\nencountering the Reasonable Man. He is at every turn, an ever-present help in time of trouble, and\nhis apparitions mark the road to equity and right. There has never been a problem, however difficult,\nwhich His Majesty\xe2\x80\x99s judges have not in the end been able to resolve by asking themselves the simple\nquestion, \xe2\x80\x98Was this or was it not the conduct of a reasonable man?\xe2\x80\x99 and leaving that question to be\nanswered by the jury.\nThis noble creature stands in singular contrast to his kinsman the Economic Man, whose every\naction is prompted by the single spur of selfish advantage and directed to the single end of monetary\ngain. The Reasonable Man is always thinking of others; prudence is his guide, and \xe2\x80\x98Safety First\xe2\x80\x99, if I\nmay borrow a contemporary catchword, is his rule of life. All solid virtues are his, save only that\npeculiar quality by which the affection of other men is won. For it will not be pretended that socially\nhe is much less objectionable than the Economic Man. Though any given example of his behaviour\nmust command our admiration, when taken in the mass his acts create a very different set of\nimpressions. He is one who invariably looks where he is going, and is careful to examine the\nimmediate foreground before he executes a leap or bound; who neither star-gazes nor is lost in\nmeditation when approaching trap-doors or the margin of a dock; who records in every case upon\nthe counterfoils of cheques such ample details as are desirable, scrupulously substitutes the word\n\xe2\x80\x98Order\xe2\x80\x99 for the word \xe2\x80\x98Bearer\xe2\x80\x99, crosses the instrument \xe2\x80\x98a/c Payee only\xe2\x80\x99, and registers the package in\nwhich it is despatched; who never mounts a moving omnibus, and does not alight from any car while\nthe train is in motion; who investigates exhaustively the bona fides of every mendicant before\ndistributing alms, and will inform himself of the history and habits of a dog before administering a\ncaress; who believes no gossip, nor repeats it, without firm basis for believing it to be true; who never\ndrives his ball till those in front of him have definitely vacated the putting-green which is his own\nobjective; who never from one year\xe2\x80\x99s end to another makes an excessive demand upon his wife, his\nneighbours, his servants, his ox, or his ass; who in the way of business looks only for that narrow\nmargin of profit which twelve men such as himself would reckon to be \xe2\x80\x98fair\xe2\x80\x99, contemplates his fellowmerchants, their agents, and their goods, with that degree of suspicion and distrust which the law\ndeems admirable; who never swears, gambles, or loses his temper; who uses nothing except in\nmoderation, and even while he flogs his child is meditating only on the golden mean. Devoid, in\nshort, of any human weakness, with not one single saving vice, sans prejudice, procrastination, illnature, avarice, and absence of mind, as careful for his own safety as he is for that of others, his\nexcellent but odious character stands like a monument in our Courts of Justice, vainly appealing to\nhis fellow-citizens to order their lives after his own example.\nI have called him a myth; and, in so far as there are few, if any, of his mind and temperament to\nbe found in the ranks of living men, the title is well chosen. But it is a myth which rests upon solid\nand even, it may be, upon permanent foundations. The Reasonable Man is fed and kept alive by the\nmost valued and enduring of our juridical institutions\xe2\x80\x94the common jury. Hateful as he must\nnecessarily be to any ordinary citizen who privately considers him, it is a curious paradox that where\ntwo or three are gathered together in one place they will with one accord pretend an admiration for\nhim; and, when they are gathered together in the formidable surroundings of a British jury, they are\neasily persuaded that they themselves are, each and generally, reasonable men. Without stopping to\nconsider how strange a chance it must have been that has picked fortuitously from a whole people\nno fewer than twelve examples of a species so rare, they immediately invest themselves with the\nattributes of the Reasonable Man, and are therefore at one with the Courts in their anxiety to support\nthe tradition that such a being in fact exists Thus it is that while the Economic Man has under the\nstress of modern conditions almost wholly disappeared from view his Reasonable cousin has gained\nin power with every case in which he has figured.\n\n\x0cCASES & CRITIQUE\n\n123\n\nTo return, however, as every judge must ultimately return, to the case which is before us\xe2\x80\x94it has\nbeen urged for the appellant, and my own researches incline me to agree, that in all that mass of\nauthorities which bears upon this branch of the law there is no single mention of a reasonable\nwoman. It was ably insisted before us that such an omission, extending over a century and more of\njudicial pronouncements, must be something more than a coincidence; that among the innumerable\ntributes to the reasonable man there might be expected at least some passing reference to a\nreasonable person of the opposite sex; that no such reference is found, for the simple reason that no\nsuch being is contemplated by the law; that legally at least there is no reasonable woman, and that\ntherefore in this case the learned judge should have directed the jury that, while there was evidence\non which they might find that the defendant had not come up to the standard required of a\nreasonable man, her conduct was only what was to be expected of a woman, as such.\nIt must be conceded at once that there is merit in this contention, however unpalatable it may at\nfirst appear. The appellant relies largely on Baxter\xe2\x80\x99s Case, 1639 (2 Bole, at page 100), in which it was\nheld that for the purposes of estover the wife of a tenant by the mesne was at law in the same position\nas an ox or other cattle demenant (to which a modern parallel may be found in the statutory\nregulations of many railway companies, whereby, for the purposes of freight, a typewriter is counted\nas a musical instrument). It is probably no mere chance that in our legal text-books the problems\nrelating to married women are usually considered immediately after the pages devoted to idiots and\nlunatics. Indeed, there is respectable authority for saying that at Common Law this was the status of\na woman. Recent legislation has whittled away a great part of this venerable conception, but so far\nas concerns the law of negligence, which is our present consideration, I am persuaded that it remains\nintact. It is no bad thing that the law of the land should here and there conform with the known facts\nof every day experience. The view that there exists a class of beings, illogical, impulsive, careless,\nirresponsible, extravagant, prejudiced, and vain, free for the most part from those worthy and\nrepellent excellences which distinguish the Reasonable Man, and devoted to the irrational arts of\npleasure and attraction, is one which should be as welcome and as well accepted in our Courts as it\nis in our drawing-rooms\xe2\x80\x94and even in Parliament. The odd stipulation is often heard there that\nsome new Committee or Council shall consist of so many persons \xe2\x80\x98one of which must be a woman\xe2\x80\x99:\nthe assumption being that upon scientific principles of selection no woman would be added to a\nbody having serious deliberative functions. That assumption, which is at once accepted and resented\nby those who maintain the complete equality of the sexes, is not founded, as they suppose, in some\nprejudice of Man but in the considered judgments of Nature. I find that at Common Law\na reasonable woman does not exist. The contention of the respondent fails and the appeal must be\nallowed. Costs to be costs in the action, above and below, but not costs in the case.\nBungay, L. F., and Blow, L. F., concurred.\n1.\n\nQUESTIONS\nThe Reasonable Man: What do you make of this so-called \xe2\x80\x9cReasonable Man\xe2\x80\x9d? Is he\nodious? Is he ordinary? Would you enjoy being around him? Would you admire him?\n\n2.\n\nCuriosity Killed the Juror: Is the \xe2\x80\x9ccurious paradox\xe2\x80\x9d mentioned in Fardell really so\ncurious? Can you make sense of it?\n\n3.\n\nThe Reasonable Woman: Though we\xe2\x80\x99re told that \xe2\x80\x9cat Common Law a reasonable\nwoman does not exist,\xe2\x80\x9d would tort law be better off replacing the Reasonable Man with her?\n\n\x0c124\n\nTORT LAW\n\nVAUGHAN v. MENLOVE\nCourt of Common Pleas (1837)\n[Defendant owned land next to a group of cottages\nbelonging to Plaintiff.]\xe2\x80\xa6 At the trial it appeared that the\nrick in question had been made by the Defendant near\nthe boundary of his own premises; that the hay was in\nsuch and state when put together, as to give rise to\ndiscussions on the probability of fire; that though there\nwere conflicting opinions on the subject, yet during a\nperiod of five weeks, the Defendant was repeatedly\nwarned of his peril; that his stock was insured; and that\nupon one Occasion, being advised to take the rick down to avoid all danger, he said \xe2\x80\x9che would\nchance it.\xe2\x80\x9d He made an aperture or chimney through the rick; but in spite, or perhaps in\nconsequence of this precaution, the rick at length burst into flames from the spontaneous heating of\nits materials; the flames communicated to the Defendant\xe2\x80\x99s barn and stables, and thence to the\nPlaintiff\xe2\x80\x99s cottages, which were entirely destroyed[, causing damage worth \xc2\xa3500].\nPatteson J. before whom the cause was tried, told the jury that the question for them to consider,\nwas, whether the fire had been occasioned by gross negligence on the part of the Defendant; adding,\nthat he was bound to proceed with such reasonable caution as a prudent man would have exercised\nunder such circumstances.\nA verdict having been found for the Plaintiff, a rule nisi for a new trial was obtained, on the\nground that the jury should have been directed to consider, not, whether the Defendant had been\nguilty of gross negligence with reference to the standard of ordinary prudence, a standard too\nuncertain to afford any criterion; but whether he had acted bona fide to the best of his judgment; if\nhe had, he ought not to be responsible for the misfortune of not possessing the highest order of\nintelligence\xe2\x80\xa6.\n\xc3\xa3\n\nTindal, Judge:\n\xe2\x80\xa6It is contended\xe2\x80\xa6that the learned Judge was wrong in leaving this to the jury as a case of gross\nnegligence, and that the question of negligence was so mixed up with reference to what would be\nthe conduct of a man of ordinary prudence that the jury might have thought the latter the rule by\nwhich they were to decide; that such a rule would he too uncertain to act upon; and that the question\nought to have been whether the Defendant had acted honestly and bona fide to the best of his own\njudgment. That, however, would leave so vague a line as to afford no rule at all, the degree of\njudgment belonging to each individual being infinitely various: and though it has been urged that\nthe care which a prudent man would take, is not an intelligible proposition as a rule of law, yet such\nhas always been the rule adopted in cases of bailment\xe2\x80\xa6. Though in some cases a greater degree of\ncare is exacted than in others, \xe2\x80\xa6[t]he care taken by a prudent man has always been the rule laid\ndown; and as to the supposed difficulty of applying it, a jury has always been able to say, whether,\ntaking that rule as their guide, there has been negligence on the occasion in question.\nInstead, therefore, of saying that the liability for negligence should be co-extensive with the\njudgment of each individual, which would be as variable as the length of the foot of each individual,\nwe ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of\nordinary prudence would observe. That was in substance the criterion presented to the jury in this\ncase, and therefore the present rule must be discharged\xe2\x80\xa6.\nVaughan, Judge:\n\xe2\x80\xa6It was, if anything, too favourable to the Defendant to leave it to the jury whether he had been\nguilty of gross negligence; for when the Defendant upon being warned as to the consequences likely\nto ensue from the condition of the rick, said, \xe2\x80\x9che would chance it,\xe2\x80\x9d it was manifest he adverted to\nhis interest in the insurance office. The conduct of a prudent man has always been the criterion for\n\xc3\xa3\n\nClaude Monet, Haystacks, Snow Effect, Morning (1891).\n\n\x0cCASES & CRITIQUE\n\n125\n\nthe jury in such cases: but it is by no means confined to them. In insurance cases, where a captain\nhas sold his vessel after damage too extensive for repairs, the question has always been, whether he\nhad pursued the course which a prudent man would have pursued under the same circumstance.\nHere, there was not a single witness whose testimony did not go to establish gross negligence in the\nDefendant. He had repeated warnings of what was likely to occur, and the whole calamity was\noccasioned by his procrastination\xe2\x80\xa6.\n1.\n\nQUESTIONS\nRights and Wrongs: Is Vaughan an example of how someone can act wrongly without\nbeing blameworthy? Does your answer depend on whether you believe that Menlove\nwas really doing the best he could?\n\n2.\n\nObjectivity: There are two distinct ways that we might view the reasonable-person\nstandard as objective. Can you see them?\n\n3.\n\nJe Suis Menlove: Most of us are \xe2\x80\x9cMenloves\xe2\x80\x9d at something. Perhaps you\xe2\x80\x99re a bad driver\nor just generally a clumsy person. What can you do about it to minimize the risks you\npose to others?\nAPPELHANS v. McFALL\nAppellate Court of Illinois (2001)\n\nByrne, Justice:\n\n\xc3\xa3\n\nPlaintiff, Maxine Appelhans, \xe2\x80\xa6who was 66 years old at\nthe time, was walking north [on a rural road with no\nsidewalk] when William [McFall], who was five years old,\nrode his bicycle and struck plaintiff from behind. Plaintiff fell\nand suffered a fractured hip. At the time of the accident, it\nwas daylight outside, the pavement was clear and dry, and no\nother pedestrians, automobiles, or bicyclists were present.\nThe roadway in the area was straight and flat.\nIn count I, plaintiff alleged that William\xe2\x80\x99s parents negligently failed to (1) instruct their son on\nthe proper use of his bicycle, or (2) supervise him while he rode his bicycle on a public roadway\nbecause they knew or should have known that his youth would prevent him from considering the\nsafety of pedestrians such as plaintiff\xe2\x80\xa6. In count II, plaintiff generally asserted that William\nnegligently caused the collision.\nDefendants filed a motion to dismiss\xe2\x80\xa6. The trial court granted the motion, concluding that\nWilliam\xe2\x80\x99s youth rendered him incapable of negligence and that plaintiff failed to allege specific facts\nthat would have put William\xe2\x80\x99s parents on notice that he might ride his bicycle negligently. This\ntimely appeal followed.\nThe Tender Years Doctrine\nDefendants\xe2\x80\x99 motion to dismiss\xe2\x80\xa6admits all well-pleaded facts in the complaint and all reasonable\ninferences drawn therefrom\xe2\x80\xa6. The fact that disposes of this issue is undisputed: William was five\nyears old when he collided with plaintiff.\nOn appeal, plaintiff contends that we should abandon the well-settled rule that a child is\nincapable of negligence if he is less than seven years old. She argues that we should adopt the\n\xe2\x80\x9cMassachusetts Rule,\xe2\x80\x9d under which any child will be found capable of negligence if the fact finder\ndecides that the child failed to exercise a degree of care that is reasonable for similarly\nsituated children.\nSection 283A of the Restatement (Second) of Torts (Restatement) mirrors the Massachusetts\nRule and provides that \xe2\x80\x9cif the actor is a child, the standard of conduct to which he must conform to\n\n\xc3\xa3\n\nPhilippe Put, Nathan Bike (CC BY 2.0).\n\n\x0c126\n\nTORT LAW\n\navoid being negligent is that of a reasonable person of like age, intelligence, and experience under\nlike circumstances.\xe2\x80\x9d Comment b to section 283A further provides in relevant part:\nSome courts have endeavored to lay down fixed rules as to a minimum age below\nwhich the child is incapable of being negligent, and a maximum age above which\nhe is to be treated like an adult. Usually these rules have been derived from the old\nrules of the criminal law, by which a child under the age of seven was considered\nincapable of crime, and one over fourteen was considered to be as capable as an\nadult. The prevailing view is that in tort cases no such arbitrary limits can be fixed.\nUndoubtedly there is a minimum age, probably somewhere in the vicinity of four\nyears, below which negligence can never be found; but with the great variation in\nthe capacities of children and the situations which may arise, it cannot be fixed\ndefinitely for all cases.\nIn 1886, our supreme court held that an injured child who was seven years and three months old\nat the time of the accident \xe2\x80\x9cwas too young, at the time she was injured, to observe any care for her\npersonal safety.\xe2\x80\x9d Chicago, St. Louis & Pittsburgh R.R. Co. v. Welsh, 9 N.E. 197 (Ill. 1886). The court\nlater expressly adopted the tender years doctrine, which states that a child is incapable\nof\xe2\x80\xa6negligence if he is less than seven years old\xe2\x80\xa6. The rationale for the tender years doctrine is the\nbelief that a child under the age of seven is incapable of recognizing and appreciating risk and is\ntherefore deemed incapable of negligence as a matter of law. The child\xe2\x80\x99s immaturity limits his\nliability regardless of whether, as a litigant, he is the plaintiff or the defendant\xe2\x80\xa6.\nDefendants contend that we must follow the tender years doctrine simply because Illinois courts\nhave applied it for nearly 100 years. Plaintiff responds that profound societal changes since the\nadoption of the rule undermine\xe2\x80\xa6stare decisis. Specifically, plaintiff asserts that the judiciary that\ncrafted the rule did not envision \xe2\x80\x9ccable television, video games, the internet, pre-teen gangs, and\nviolent crime.\xe2\x80\x9d She argues that, in response to these modern-day challenges, children are instructed\nat an early age that they must exercise good judgment for themselves and others and therefore we\nmay hold them to a reasonable standard of care based upon their age.\nIn reaffirming its preference for the Massachusetts Rule, the Supreme Court of Minnesota [in\nToetschinger v. Ihnot, 250 N.W.2d 204 (Minn. 1977)] quoted an opinion it drafted in 1936 [Eckhardt\nv. Hanson, 264 N.W. 776 (Minn. 1936)]:\nUnder present-day circumstances a child of tender years is permitted to assume\nmany responsibilities. There is much opportunity for him to observe and thus\nbecome cognizant of the necessity for exercising some degree of care. Compulsory\nschool attendance, the radio, the movies, and traffic conditions all tend to have\nthis effect. The Illinois rule has no basis in sound reason or logic. It is based upon\nan outworn historical rule of criminal law which refused to acknowledge any\ncapacity on the part of any child under seven years of age to distinguish between\nright and wrong.\nThe Minnesota high court recognized that children were sufficiently sophisticated in 1936 to be\nheld to a reasonable standard of care. As society has changed dramatically since the Eckhardt court\nmade its observations, children have become even more sophisticated. Because the tender years\ndoctrine is based on the assumption that young children cannot recognize or appreciate risk, the\nrule is increasingly undermined as society more thoroughly educates them on safety issues. We\nfind Eckhardt to be persuasive, and it lends great weight to plaintiff\xe2\x80\x99s argument that Illinois children\nunder the age of seven may be negligent.\nPlaintiff further contends that the tender years doctrine is unreasonable because it arbitrarily\nsets an age below which a child is presumed to be incapable of negligence. Plaintiff contends that\nthe use of an arbitrary age leads to \xe2\x80\x9cridiculous\xe2\x80\x9d results because a child does not \xe2\x80\x9cmagically\xe2\x80\x9d know to\nexercise due care after his seventh birthday\xe2\x80\xa6. [S]everal jurisdictions have accepted this argument\nand rejected the tender years doctrine accordingly. We agree with plaintiff that the arbitrariness of\nthe rule supports its abandonment. However, we reluctantly conclude that the principle of stare\ndecisis requires this court to reassert the tender years doctrine.\n\n\x0cCASES & CRITIQUE\n\n127\n\nIt is well settled that where it is clear that a court has made a mistake in adopting a rule, it should\nnot decline to correct it, even though the rule may have been reasserted and acquiesced in for many\nyears. No person has a vested right in any rule of law entitling him to insist that it shall remain for\nhis benefit. However, when a rule of law has been settled, it should be followed unless a party can\nshow that serious detriment prejudicial to the public interest is likely to arise. The rule of stare\ndecisis is founded upon sound principles in the administration of justice, and a court should not\ndepart from rules long recognized as the law merely because the court believes that it might decide\nthe issue differently if the question were novel\xe2\x80\xa6. The modification in the law that plaintiff advocates\nis\xe2\x80\xa6far-reaching\xe2\x80\xa6, and we decline to announce such a sweeping change here. Instead, we invite our\nsupreme court or the legislature to revisit the viability of the tender years doctrine.\nWhen a child is between 7 and 14 years old, the trier of fact must consider the \xe2\x80\x9cage, capacity,\nintelligence, and experience of the child\xe2\x80\x9d in light of the rebuttable presumption that a child between\nthe ages of 7 and 14 is incapable of negligence. However, it is well settled in Illinois that a child who\nis 14 years old or who engages in an adult activity is held to an adult standard of care. Because bicycle\nriding on a public street is not an adult activity, a bicyclist between the ages of 7 and 14 is held to a\nreasonable standard of care based upon his age and experience. Therefore, one could argue that,\nwhen a child under the age of 7 engages in an activity that children between the ages of 7 and 14\nnormally pursue, such as riding a bicycle, the child should be held to the standard of care of a\nreasonable 7-year-old. However, we do not answer this question here\xe2\x80\xa6. We conclude that the trial\ncourt correctly dismissed count II of plaintiff\xe2\x80\x99s complaint because William was incapable of\nnegligence at the time of the accident.\nNegligent Parental Supervision\nPlaintiff next asserts that William\xe2\x80\x99s parents were negligent for failing to supervise William or\ninstruct him on the proper use of his bicycle\xe2\x80\xa6. In Illinois, the parent-child relationship does not\nautomatically render parents liable for the torts of their minor children. Parents may be liable,\nhowever, if they do not adequately control or supervise their child. To prove a claim of negligent\nsupervision, a plaintiff must show that (1) the parents were aware of specific instances of prior\nconduct sufficient to put them on notice that the act complained of was likely to occur and (2) the\nparents had the opportunity to control the child\xe2\x80\xa6.\nHere, plaintiff alleged that the parents\xe2\x80\x99 mere knowledge of William\xe2\x80\x99s age sufficiently informed\nthem that ongoing supervision was necessary. Plaintiff did not assert that the parents knew of a\nspecific prior incident where William negligently struck a pedestrian while he rode his bicycle.\nPlaintiff essentially contends that parents should be liable for all negligent acts of their children.\nHowever, we conclude that holding parents strictly liable for failing to prevent their child\xe2\x80\x99s\nnegligence is unreasonable and unsupported by the law. Cf. Chu v. Bowers, 656 N.E.2d 436 (Ill. Ct.\nApp. 1995) (\xe2\x80\x9cit is in the nature of children to be careless and thoughtless on occasion, and society\nmust be ever aware of the need to exercise extraordinary caution when children are present\xe2\x80\x9d).\nIn Lott v. Strang, 727 N.E.2d 407 (Ill. Ct. App. 2000), the plaintiffs sued the parents of an\nunemancipated minor who caused a traffic collision while he was allegedly intoxicated. In support\nof their negligent parental supervision claim, the plaintiffs alleged that the parents knew that their\nson was likely to drive negligently because he had been at fault in an earlier traffic accident.\nThe\xe2\x80\xa6Appellate Court affirmed the dismissal, concluding that section 316 of the Restatement does\nnot require parents to prevent their children from ever entering into a situation where they might\ncommit a negligent act. The court further noted that the parents had no duty to discipline their child\nand regulate his conduct on a long-term ongoing basis. Parents are not liable for such broadly\ndefined omissions. In this case, plaintiff defines the omission in parenting even more broadly than\nthe alleged parental negligence addressed in Lott. Furthermore, plaintiff does not allege that the\nparents had an opportunity to follow William to ensure that he rode his bicycle safely. We conclude\nthat plaintiff did not allege the two elements of negligent parental supervision\xe2\x80\xa6.\n1.\n\nQUESTIONS\nBreaking the (Piggy) Bank: Why does Maxine sue William for thousands of dollars? Is\nWilliam likely to have that kind of pocket money?\n\n\x0c128\n\nTORT LAW\n\n2.\n\nBiker Gangs: Maxine challenges the tender-years doctrine by pointing to the existence\nof \xe2\x80\x9ccable television, video games, the internet, pre-teen gangs, and violent crime.\xe2\x80\x9d Is she\nsuggesting that five-year-old William was part of some juvenile bicycle gang and that\nthis was a drive-by attack? What\xe2\x80\x99s her point?\n\n3.\n\nYou Can Never Leave the Family: Notice that William\xe2\x80\x99s parents aren\xe2\x80\x99t subject to\nrespondeat superior liability, of the kind we saw in Leichtman and Walter. Instead,\nMaxine\xe2\x80\x99s claim against the parents must show independent carelessness based on their\nallegedly negligent supervision. Why shouldn\xe2\x80\x99t we treat families like firms? Shouldn\xe2\x80\x99t\nparents simply be on the hook when their kids carelessly injure others?\nPYRAMID PROBLEM\n\nLapo had owned Bellapais Sporting Goods Store for almost a decade when a new bookstore\nopened next-door. As he greeted his new neighbors, he was impressed by their elaborate display\nfeaturing hundreds of books stacked in a 12-foot-high pyramid at the center of the store. To\ncelebrate his own store\xe2\x80\x99s 10-year anniversary, Lapo got the grand idea to set up a similar display\nusing footballs, rugby balls, and basketballs instead. As Lapo excitedly described this vision to his\nfamily over dinner, his husband Simon and their teenage kids pointed out that books are flat and\nwell-suited for stacking, whereas balls aren\xe2\x80\x99t so easy to arrange. Lapo countered that all the best\nstores in town had ambitious displays, but Simon still fretted about the structure\xe2\x80\x99s intended size and\nsaid he was worried about it falling on a customer and hurting someone. Intent on proving his family\nwrong, Lapo watched hours of YouTube videos on erecting displays, worked hard to balance the\nballs precisely, and was quite proud of the finished product.\nA few hours after Lapo finished his project, the Randle family came in to purchase 5-year-old\nMary her first bicycle. Mary picked out a sleek blue bike and was pedaling around the store while\nher parents chatted with Lapo and began checking out. Unfortunately for everyone involved, the\ndisplay suddenly came crashing down, hurting both Mary and another shopper, Piers. Security\nfootage didn\xe2\x80\x99t show anyone touching the display or otherwise causing it to fall. Mary needed stitches\nafter one ball knocked her forehead into her new handlebars, while Piers suffered a bad concussion.\n(a) Was Lapo negligent in setting up his display? What standard of care would apply in a\nnegligence claim against Lapo? Does it matter that Lapo\xe2\x80\x99s husband and kids told him that\nthis was a bad idea? Would your answer change if Lapo was known for being a fun but\nsometimes foolish guy who often seems to make dodgy decisions?\n(b) Could Piers have a viable claim against Lapo for negligence? How about against Mary or\nher parents?\n\n\x0cCASES & CRITIQUE\n\n129\n\nLAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO. v. MILLER\nSupreme Court of Michigan (1872)\nChristiancy, Chief Justice:*\n\xc3\xa3\n\nThe defendant in error sued the railroad\ncompany\xe2\x80\xa6for injuries received by her in a\ncollision between the locomotive of a passenger\ntrain and the wagon in which she was riding with\none Eldridge, the owner of the team and wagon,\nwho was driving, or undertook to drive, across the\nrailroad track at the crossing of a highway; claiming\nthat the collision took place and the injury was\ncaused by the negligence of the company\xe2\x80\xa6. [T]he\nonly negligence which can be claimed in the mode\nof running the train, must rest upon the ground that the company having obscured the view and\ndeadened the sound of the approaching train [by piling up wood near the track] were bound for that\nreason, to run at much less than their usual rate of speed in approaching that crossing, or to keep a\nflagman there, or use some other extra means to warn people traveling the highway, of the approach\nof trains from the west\xe2\x80\xa6.\n[In general,] if an engineer see a team and carriage, or a man, in the act of crossing the track, far\nenough ahead of him to have ample time\xe2\x80\xa6to get entirely out of the way before the approach of the\nengine\xe2\x80\xa6, and is not aware that he is deaf or insane, or from some other cause insensible of the\ndanger,\xe2\x80\xa6 he has a right to rely upon the laws of nature and the ordinary course of things, and to\npresume that the man driving the team or walking upon the track, has the use of his senses, and will\nact upon the principles of common sense and the motive of self-preservation common to mankind\nin general; that they will, therefore, get out of the way\xe2\x80\xa6; and he, therefore, has the right to go on,\nwithout checking his speed, until he sees that the team or the man is not likely to get out of the way,\nwhen it would become his duty to give extra alarm by bell or whistle, and if that is not heeded, then,\nas a last resort, to check his speed or stop his train, if possible, in time to avoid disaster. If however,\nhe sees a child of tender years, or any person known to him to be, or from his appearance giving him\ngood reason to believe that he is, insane, or badly intoxicated, or otherwise insensible of danger, or\nunable to avoid it, he has no right to assume that he will get out of the way, but should act upon the\nbelief that he might not, or would not, and he should therefore take means to stop his train in time.\nA more stringent rule than this\xe2\x80\x94a rule that would require the engineer to check his speed or\nstop his train, whenever he sees a team crossing the track or a man walking on it, far enough ahead\nto get out of the way in time\xe2\x80\xa6or which would require the engineer to know the deafness or\nblindness, or acuteness of hearing or sight, or habits of prudence or recklessness or other personal\npeculiarities of all those persons he may see approaching or upon the track\xe2\x80\xa6\xe2\x80\x94any such rule, if\nenforced, must effectually put an end to all railroads, as a means of speedy travel or transportation,\nand reduce the speed of trains below that of canal-boats forty years ago; and would effectually defeat\nthe object of the legislature in authorizing this mode of conveyance.\nBut how are railroad companies, or their engineers or employees, to know the personal\npeculiarities, the infirmities, personal character or station in life, of the hundreds of persons crossing\nor approaching their track? By inspiration or intuition? And if they do not know, then how and why\nshall the company be required to run their road, or regulate their own conduct, or that of their\nservant, by such personal peculiarities of strangers, of which they know nothing?\nThese questions suggest their own answers; and these considerations sufficiently show, that the\n[trial] court erred in adopting, as the standard of reasonable care on the part of Eldridge and the\nplaintiff, \xe2\x80\x9csuch care as persons of their situation or condition in life, would ordinarily exert under\n* The Miller case excerpt, along with the next eight excerpts (Daniels, Eichhorn, Tucker, Asbury, Tankersly, Fox,\nLorentzen, and Denton), are based on materials originally prepared by Margo Schlanger, who graciously let me adapt them.\nShe explores issues raised by these cases in Margo Schlanger, Injured Women before Common Law Courts, 1860-1930, 21\nHARV. WOMEN\xe2\x80\x99S L.J. 79 (1998).\n\xc3\xa3\nPhoto Librarian, Rhodes, Iowa, Wagon, Horses, Bags, Hazel Nuts, 1915 (CC BY-NC-ND 2.0).\n\n\x0c130\n\nTORT LAW\n\nlike circumstances,\xe2\x80\x9d and in charging that \xe2\x80\x9cany greater care than this she was not required to\nexercise.\xe2\x80\x9d\xe2\x80\xa6 I think the judgment should be reversed, with costs, and a new trial awarded\xe2\x80\xa6.\n1.\n\nQUESTIONS\nSaying the Quiet Part Out Loud: Is this case about gender? Does Chief Justice\nChristiancy seem to think that gender is relevant to the outcome?\nDANIELS v. CLEGG\nSupreme Court of Michigan (1873)\n\nChristiancy, Chief Justice:\n\n\xc3\xa3\n\nThis was an action\xe2\x80\xa6brought by Clegg against Daniels.\n[After a jury trial,] the plaintiff recovered a judgment for fifty\ndollars, which Daniels brings to this court by writ of error\xe2\x80\xa6.\nOn the trial in the circuit the plaintiff gave evidence\ntending to show that while his daughter, aged about twenty\nyears, was driving a horse and buggy of the plaintiff\xe2\x80\x99s, \xe2\x80\xa6and\nbeing in great haste to find her father on account of the\ndangerous illness of a sister, she came to a hill which she\ncommenced to descend, when she observed the defendant driving on [the same side of the road as\nshe was] coming up the hill with two horses and a wagon; that defendant did not turn out for her at\nall, but drove directly on, and although she turned as far as she possibly could to the [side], a collision\nensued by which the buggy or carriage in which she was riding was overturned and damages, and\nthe daughter was thrown out\xe2\x80\xa6; that the horse was a gentle family horse, that the buggy was injured\nto the amount of ten dollars, and the horse damaged to the amount of fifty dollars.\nThe defendant gave evidence tending to show that [although he was driving on the left side of\nthe road, he drove appropriately, and that the accident was the plaintiff\xe2\x80\x99s daughter\xe2\x80\x99s fault]\xe2\x80\xa6.\nThe trial court was correct in charging [the jury] that \xe2\x80\x9cin deciding whether the plaintiff\xe2\x80\x99s\ndaughter exercised ordinary care in driving the horse, or was guilty of [contributory] negligence, the\njury should consider the age of the daughter, and the fact that she was a woman\xe2\x80\x9d; and \xe2\x80\x9cthat she\nwould not be guilty of negligence if she used that degree of care that a person of her age and sex\nwould ordinarily use\xe2\x80\x9d; and in refusing to charge, that \xe2\x80\x9cfor the purpose of this case, the daughter\nshould be held to the same degree of care and skill that would be required of the plaintiff himself,\nhad he been driving at the time of the collision.\xe2\x80\x9d\nThe case, upon this point, does not, as to the defendant, stand upon the same, or even similar\ngrounds with respect to the plaintiff\xe2\x80\x99s daughter, as the case of a railroad engineer or conductor in\nrespect to person approaching a railroad track while the train is in rapid motion, with teams and\nwagons which cannot be seen, or the persons driving be recognized, until so close to the track as to\nrender any knowledge of the character or the capacity of such persons of any avail; as in the case of\nthe Lake Shore & Mich. Southern R.R. Co. v. Miller, 25 Mich. 274 (1872)\xe2\x80\xa6. And yet, even in that\ncase, as to children upon the track, ahead of the train, who could be seen by the engineer, or other\npersons known to him to be incompetent or deprived of any of their faculties necessary to their\nsafety under such circumstances, it was held that the engineer was bound to act with reference to\nthe incapacity of such persons thus appearing or known to him, and so far as in his power, to govern\nhis train accordingly, until such persons were out of danger. And the same principle [has been]\nrecognized with respect to the rights and duties of street railway companies towards children upon,\nor getting on or off, their cars.\nThese cases fully recognized the principle that, in deciding upon the degree of diligence to be\nrequired of children, or other persons more or less incompetent, that incompetency must be taken\ninto account; and no higher degree of diligence must be required of such persons than we have a\nright to expect, or than experience has shown such persons generally would be likely to exercise\nunder like circumstance; and that other persons to whom that incompetency is apparent, or who\n\xc3\xa3\n\nOregon Department of Transportation, Meeting on the Road (CC BY 2.0).\n\n\x0cCASES & CRITIQUE\n\n131\n\nknow or have good reason to believe it, are bound to exercise towards such persons a\ncorrespondingly higher degree of care, according to the degree of that incompetency, so far as, under\nthe circumstances, it may be reasonably within their power. This principle, thus limited, is one of\nsimple justice, of common sense and common humanity, too obvious to require comment, and has\noften been recognized by courts in various forms.\nThe charge in this case comes directly within this principle. The defendant saw the plaintiff\xe2\x80\x99s\ndaughter approaching, driving the horse and carriage. No one would ordinarily expect, and the\ndefendant had no right to expect, from a young woman thus situated, the same amount of\nknowledge, skill, dexterity, steadiness of nerve, or coolness of judgment, in short the same degree of\ncompetency, which he would expect of ordinary men under like circumstances; nor, consequently,\nwould it be just to hold her to the same high degree of care and skill. The incompetency indicated\nby her age or sex\xe2\x80\x94without evidence (of which there is none) of any unusual skill or experience on\nher part\xe2\x80\x94was less in degree, it is true, than in the case of a mere child; but the difference is in degree\nonly, and not in principle\xe2\x80\xa6. [T]he judgment should be affirmed, with costs.\n1.\n\nQUESTIONS\nBaselines: Does the court\xe2\x80\x99s decision effectively give a benefit to women who drive a horse\nand buggy by excusing them for poor driving that injures others? Is that fair to women?\nIs it fair to the people who are injured?\n\n2.\n\nTropes: Is this case just a historical artefact? It\xe2\x80\x99s easy to treat it that way, given that it was\nwritten nearly 150 years ago. But have you ever heard someone make a sexist quip about\n\xe2\x80\x9cwomen drivers\xe2\x80\x9d? Can we really consign this case to the history books so easily?\n\n3.\n\nPursuing Equality: Let\xe2\x80\x99s assume that, in 1983, female drivers were on average less able\nto control a horse and buggy than male drivers, perhaps due to common physical\ncharacteristics or a lack of opportunities or training to drive. Which breach standard\nbest serves equality goals? Does a gender-blind \xe2\x80\x9creasonable person\xe2\x80\x9d standard undermine\nequality by making driving more expensive and less appealing for women? At the same\ntime, does a gender-conscious \xe2\x80\x9creasonable woman\xe2\x80\x9d standard reinforce stereotypes and\nessentialize people in ways that undermine equality?\nEICHHORN v. MISSOURI, K. & T. RAILWAY CO.\nSupreme Court of Missouri (1895)\n\nGantt, Judge:\n\n\xc3\xa3\n\nThis is an action to recover damages\nresulting from personal injuries received by\nthe plaintiff, a married woman, in attempting\nto board one of defendant\xe2\x80\x99s passenger trains at\nHarriston station, on defendant\xe2\x80\x99s railroad, in\nCooper county, Mo., on February 19, 1892.\nThe petition alleges that on said 19th day of\nFebruary, and for a long time prior thereto, the\ndefendant had carelessly and negligently failed\nto construct and maintain any platform or provide any other means suitable and safe to enable\npassengers to get on and off the cars of the defendant at said station; that the plaintiff took passage\non one of defendant\xe2\x80\x99s passenger trains at Harriston, to go to Pilot Grove; that plaintiff was at the\ntime pregnant with child, and while getting aboard of defendant\xe2\x80\x99s train as aforesaid, through the\ncarelessness and negligence of the defendant in not having any platform or other suitable and safe\nmeans for getting onto defendant\xe2\x80\x99s said passenger train, the plaintiff, without any fault on her part,\nslipped from one of the steps of one of the cars in defendant\xe2\x80\x99s said passenger train, and was strained\nand wounded in the spine, and the right side and right arm, leg, and foot\xe2\x80\xa6to her damage in the sum\n\xc3\xa3\n\nJJ Look, 1 Pound of Fury (CC BY-NC-ND 2.0).\n\n\x0c132\n\nTORT LAW\n\nof $10,000, for which she asked judgment. The answer was a general denial and a plea of contributory\nnegligence, to which the plaintiff replied in a general denial. Upon the trial, the plaintiff got a verdict\nand judgment for $3,000. Defendant\xe2\x80\xa6brings the case here by appeal.\nAt the trial the following facts were substantially established: \xe2\x80\xa6Some time in the month of\nSeptember, 1891, [the Harriston] depot building was destroyed by fire. Thereafter the trains stopped\nat a point north of where the depot had stood originally, and at a place where a county road crossed\nthe railroad track. At this point the evidence showed that it was from 30 inches to 3 feet from the\nground to the lowest step on the passenger coaches. Harriston was a regular station on the line of\nthis railroad\xe2\x80\xa6. No platform or other means of any kind had been erected or provided by the railroad\ncompany to aid passengers in getting on and off its cars after the depot was burned. A small pine\nbox had at one time been placed by one of the neighbors on the west side of the track, that passengers\nmight step on, in order to get on and off the cars. Some time prior to the 19th day of February, 1892,\nthe wife of the witness Nixon had stepped on this box in attempting to get on the train, and had\ncrushed it; and on the 19th day of February, and for some time prior thereto, this box had not been\nin use, and was not at the place.\n[On the day in question,] Mrs. Meisel preceded the plaintiff into the car, and boarded it without\nany difficulty. The plaintiff, in attempting to get on the train, took hold of the iron bar with her right\nhand, placed her right foot on the step, which was some 30 inches or 3 feet high, and, in attempting\nto get on the cars, she slipped, and fell from the steps, and, in falling, sprained her ankle, and twisted\nher body and spine, and the jar and shock seriously injured her, and caused her much suffering, and\nresulted in a permanent injury to the spine, which has produced a partial paralysis of her entire right\nside\xe2\x80\xa6. After her foot had slipped and she had fallen, she testified that the porter came out of the\ncars, stepped down on the east side, where she was standing, and aided her in getting aboard the\ncars. The evidence tends to show that, prior to this date, the plaintiff was a strong, healthy Norwegian\nwoman, who, unaided, had done all of her own housework; and the evidence further shows that,\nimmediately upon entering the car, she complained of having sprained her ankle; that her right foot\nbegan to swell, and so pained her that she was forced to unbutton her shoe. A few days afterwards\nshe began to discover pains in her spine, just below the shoulders; and when she would attempt to\nlift any article of weight, or lean back suddenly in her chair, the pain in her spine was so intense that\nit would bring on spells of fainting and sickness\xe2\x80\xa6.\nUpon the conclusion of the evidence, the court gave the following instructions for the plaintiff,\nover the defendant\xe2\x80\x99s objections:\n(1) \xe2\x80\xa6[I]f you\xe2\x80\xa6believe from the evidence that plaintiff, while getting aboard said\ntrain, through the carelessness and negligence of the defendant in not having any\nplatform or other reasonably safe and suitable means for getting onto said train,\nand without any fault or negligence on her part, the plaintiff slipped from one of\nthe steps of one of the cars in said train, and was [injured] then you will find the\nissues for the plaintiff, unless you further find from the evidence that plaintiff\xe2\x80\x99s\ninjuries, if any, were caused by her own negligence contributing directly thereto\xe2\x80\xa6\n(2) The jury are instructed that the words \xe2\x80\x98carelessly,\xe2\x80\x99 \xe2\x80\x98negligently,\xe2\x80\x99 and\n\xe2\x80\x98negligence,\xe2\x80\x99 used in the instruction, mean the lack of such care and caution as\nreasonable and prudent men would exercise under like circumstances.\n[In addition, at the request of the defendant, the court added the following:]\nThe court instructs the jury that if you believe from the evidence that the plaintiff\nwas injured in attempting to get upon one of defendant\xe2\x80\x99s trains at Harriston\nstation, and that such injury was occasioned in whole or in part by the plaintiff\xe2\x80\x99s\nfailure or neglect to exercise such care, caution, and foresight as a woman of\nordinary care, caution, and foresight would have exercised under the\ncircumstances surrounding the plaintiff at the time, then such injury was due to\nthe plaintiff\xe2\x80\x99s negligence, and your verdict must be for the defendant\xe2\x80\xa6.\nThe instructions\xe2\x80\xa6very fairly present the only controverted issue in this case. It was the plain\nduty of the defendant to provide suitable, safe, and convenient means for the ingress and egress of\n\n\x0cCASES & CRITIQUE\n\n133\n\nits passengers into and out of its trains. It had wholly failed to comply with this obligation\xe2\x80\xa6. Carriers\nof passengers should anticipate that both old and young women, feeble and delicate people, as well\nas the strong and robust, will seek passage on their cars, and provide suitable platforms or steps for\nthat purpose\xe2\x80\xa6.\nAs to the criticism of the court\xe2\x80\x99s instructions because it defined negligence to mean the lack of\nsuch care and caution as reasonable and prudent \xe2\x80\x9cmen\xe2\x80\x9d would exercise under like circumstances,\ninstead of \xe2\x80\x9cwomen,\xe2\x80\x9d it is only necessary to say the defendant\xe2\x80\x99s own instruction cured this defect, if\nany; but the jury would have been utterly unfit to try any case if they did not understand that \xe2\x80\x9cmen,\xe2\x80\x9d\nin this instruction, was generic, and embraced \xe2\x80\x9cwomen.\xe2\x80\x9d The judgment is affirmed.\n1.\n\nQUESTIONS\nGender as a Shield I: The railway company sought a \xe2\x80\x9creasonable woman\xe2\x80\x9d standard in\nthe jury instructions. Why did it imagine that this might help it escape liability?\nTUCKER v. HENNIKER\nSuperior Court of Judicature of New Hampshire (1860)\n\nCASE, for damages resulting to the plaintiff from\nalleged defects in a public highway in Henniker. On trial,\nit appeared that on the afternoon of July 28, 1858, Dr.\nJonas Ball hired a horse and carriage at Hillsborough\nBridge, to go to the village of Henniker, where he arrived\nabout sunset, taking the plaintiff and his daughter with\nhim. Dr. Ball stopped at the hotel in Henniker; while the\nplaintiff and his daughter started with the horse and\ncarriage to go to the plaintiff\xe2\x80\x99s mother\xe2\x80\x99s, about half a mile\ndistant; and on the way thither, the plaintiff driving the horse at the time, the accident occurred.\nThe defendants\xe2\x80\xa6contended that the unskillfulness or want of care of the plaintiff in the\nmanagement of the horse contributed to the accident; and upon this point the court instructed the\njury, that if the plaintiff were guilty of any fault in the management of the horse, any want of ordinary\ncare, skill and prudence in driving or controlling the horse, which contributed to the accident,\nwithout which the accident would not have occurred, notwithstanding the defect in the highway,\nshe could not recover; because she was bound to exercise ordinary care, skill and prudence in\nmanaging the horse, such care, skill and prudence as ordinary persons like herself were accustomed\nto exercise in managing their horses. To the instructions\xe2\x80\xa6the defendants excepted.\nFowler, Justice:\n\xe2\x80\xa6The instructions\xe2\x80\xa6although generally correct, contain a single expression in the explanation\nof what constitutes ordinary care and skill, which, in the opinion of the court, might have misled the\njury as to the proper standard by which to determine it. The plaintiff was bound only to the exercise\nof ordinary care, skill and prudence in the management of her horse; such care, skill and prudence\nas persons or people in general were accustomed to exercise in managing their horses. Common or\nordinary diligence is defined by Story as \xe2\x80\x9cthat degree of diligence which men in general exert in\nrespect to their own concerns\xe2\x80\x9d; \xe2\x80\x9cwhich men of common prudence generally exercise about their\nown affairs in the age and country in which they live.\xe2\x80\x9d In a country where women are accustomed,\nas among us, to drive horses and carriages, there can be no doubt that the degree of care, skill and\nprudence required of a woman in managing her horse would be precisely that degree of care, skill\nand prudence which persons of common prudence, or mankind in general, usually exercise, or are\naccustomed to exert, in the management of the horses driven by them. Now the language of the\ncharge in the court below might be construed as making the average care, skill and prudence of\nwomen in managing horses, instead of the average care, skill and prudence of mankind generally,\nincluding all those accustomed to manage horses, whether men or women, boys or girls, the\nstandard by which to determine whether or not the plaintiff had been guilty of any unskillfulness or\nwant of care in the management of her horse at the time of the accident. As it may be doubtful\n\n\x0c134\n\nTORT LAW\n\nwhether this average would be higher or lower than that of mankind in general, and as it is not the\nprecise standard prescribed by the law, and the jury may possibly have been misled by it, the\ninstructions must be held to have been erroneous on this point\xe2\x80\xa6. With these views, the verdict\nrendered for the plaintiff must be set aside, and a new trial be granted.\n1.\n\nQUESTIONS\nMarkedness: In reviewing the trial court\xe2\x80\x99s jury instruction, the appellate court could\xe2\x80\x99ve\nconstrued \xe2\x80\x9cperson\xe2\x80\x9d as gender-neutral language but instead concluded that using the\nphrase \xe2\x80\x9cordinary persons like herself\xe2\x80\x9d erroneously called upon the jury to consider the\nplaintiff\xe2\x80\x99s gender. Would the court have reached the same conclusion about \xe2\x80\x9chimself\xe2\x80\x9d?\nASBURY v. CHARLOTTE ELECTRIC RAILWAY, LIGHT & POWER CO.\nSupreme Court of North Carolina (1899)\n\nMontgomery, Justice:\nThis action was brought by the feme plaintiff to\nrecover damages for injuries received by her, and\nalleged to have been caused by the negligence of the\ndefendant. The particular allegation of the complaint is\nthat the feme plaintiff was a passenger on one of the\nstreet cars of the defendant, and while she was in the act\nof disembarking therefrom the servants and agents of\nthe defendant in charge of said car negligently caused\nthe car to be suddenly started forward, and that the said\nplaintiff, in consequence thereof, was thrown to the\nground and injured. The defendant denied the imputed\nnegligence, and averred that plaintiff was negligent in assuming a dangerous position, and in\nalighting from the car.\n[The plaintiff testified that an obstruction prevented her from getting off directly from the floor\nof the street car to the step or the running board at its exit. As she was trying to get past the\nobstruction, she says the car started with a jerk, and toppled her over. All the evidence of other\nwitnesses was that the plaintiff had tripped in exiting the car, perhaps because she stepped on her\nlong skirt, but that the car did not move at any relevant point. The defendant objected to various\njury instructions.]\xe2\x80\xa6\nHis honor told the jury in his charge that \xe2\x80\x9cdue care\xe2\x80\x9d meant \xe2\x80\x9csuch care as an ordinarily prudent\nman, placed in circumstances like or similar to those in which the person whose conduct is in\nquestion was placed, would use.\xe2\x80\x9d\xe2\x80\xa6\nUnder the head of \xe2\x80\x9cdue care,\xe2\x80\x9d the defendant contended, further, that when his honor laid down\nthe rule of \xe2\x80\x9cthe prudent man,\xe2\x80\x9d in reference to the conduct of the feme plaintiff at the time of her\ninjury, he committed error. The argument was that the definition of \xe2\x80\x9cdue care\xe2\x80\x9d was misleading \xe2\x80\x9cas\nthe care to be exercised by a woman, when she is placed in a dangerous position, would be greater\nthan that required of a man surrounded by the same circumstances; that she is supposed to be less\nable to take care of herself than is a man, and the danger to her will therefore be greater; that, when\nthis is the case (that is, when the danger is greater), the law requires a greater degree of care to be\nexercised in avoiding it.\xe2\x80\x9d [But] [t]here is nothing in [the precedent defendant cites in support of its\ncontention] which even squints toward a holding that a woman is not bound by the rule of \xe2\x80\x9cthe\nprudent man,\xe2\x80\x9d but ordinarily by a stricter rule\xe2\x80\xa6. No error.\n1.\n\n2.\n\nQUESTIONS\nGender as a Shield II: Is the railway company in Asbury making the same type of\nargument as the railway company in Eichhorn? Can you see what the companies are up\nto now?\nConsistency: Can you favor the Daniels rule but object to the Asbury/Eichhorn rule?\n\n\x0cCASES & CRITIQUE\n\n135\n\nLITTLE ROCK & FORT SMITH RAILWAY CO. v. TANKERSLY\nSupreme Court of Arkansas (1890)\nHemingway, Justice:\n[Plaintiff, a passenger on defendant\xe2\x80\x99s train,\nendeavored to alight therefrom at a station while\nthe cars were in motion, and was injured. She\nalleges that the train did not stop long enough to\npermit her to alight before it was again started.]\nTwo questions were therefore involved in the\nproper determination of the cause\xe2\x80\x94First. Was\nthe injury attributable to any misconduct of the\ndefendant? Second. Did the plaintiff contribute\nto it by any negligence on her part?\xe2\x80\xa6\nOn the law applicable to the negligence of the plaintiff, the [trial court\xe2\x80\x99s jury] charge is subject\nto objection. [The charge was given at the request of the plaintiff, and erred in implying that, if the\ndefendant stopped the train for an insufficiently long time,] that would excuse a hazardous attempt\nby plaintiff to alight. That is not the law. The conduct of the plaintiff must be judged from present\nconditions, and upon them the past delinquency of another sheds no light. If it would seem to a\nperson of ordinary prudence and caution to be safe to step off, considering the train\xe2\x80\x99s speed, the\nsituation of the place of alighting, the opportunity to see where the step was made, and the activity\nof the person making it, and all other circumstances reasonably affecting the safety of the attempt,\nit could not be deemed negligence in the plaintiff to do it. But the failure of a train to stop, does not\njustify an attempt to alight that is hazardous, nor is it an element to be considered in determining in\nany given case whether such attempt was prudent or hazardous\xe2\x80\xa6.\n[Moreover, the] eighth instruction asked by the defendant should have been given. The act of\nthe plaintiff was to be judged by a comparison with the acts of persons of ordinary prudence under\nsimilar circumstances. Her age, sex, and physical condition were circumstances necessarily affecting\nher safety in stepping from a moving train, and should have been considered by the jury, in\nconnection with all other such circumstances in proof, in determining whether she acted prudently\nor recklessly. A young, active man might prudently alight, when the attempt would be reckless in an\nold or lame man; and any man might do so prudently, when it would be dangerous for a lady in\nfemale attire to attempt it\xe2\x80\xa6. [T]he judgment will be reversed, and the cause remanded for a new trial.\n1.\n\nQUESTIONS\nCircumstances: The court concludes that Tankersly\xe2\x80\x99s \xe2\x80\x9cage, sex, and physical condition\nwere circumstances necessarily affecting her safety in stepping from a moving train, and\nshould have been considered by the jury.\xe2\x80\x9d When determining ordinary care, does\nconsidering a person\xe2\x80\x99s sex involve a similar logic to considering their age? How about\ntheir sex as compared to their physical condition? Are all of these so-called\n\xe2\x80\x9ccircumstances\xe2\x80\x9d analytically similar for purposes of this legal analysis?\n\n\x0c136\n\nTORT LAW\n\nFOX v. TOWN OF GLASTENBURY\nSupreme Court of Errors of Connecticut (1860)\nSanford, Justice:\n\n\xc3\xa3\n\nAction\xe2\x80\xa6brought by the plaintiff, [Henry Fox,] as\nadministrator of [the estate of] Harriet Fox, to recover\ndamages for the loss of her life by reason of the\nnegligence of the defendants in not maintaining a\nrailing along the sides of a causeway, which was a part\nof a public highway of the town\xe2\x80\xa6. The jury rendered\na verdict for the plaintiff, and the defendants moved\nfor a new trial for a verdict against evidence.\n[U]pon a very careful examination of the evidence before us, we are satisfied that, however\nnegligent the defendants may have been, the unfortunate woman who lost her life, essentially\ncontributed to the production of that result by her own culpable imprudence and indiscretion; so\nthat upon the well established principles of law, promulgated and recognized by this court in many\ncases, the plaintiff was not entitled to the verdict which he obtained.\n[The facts were these:] [H]aving procured a horse and wagon, [the deceased and her companion,\nMrs. Clarinda Fox] started to go over the causeway, from the main land to the ferry. There was a\nfreshet in the river, and the water had in consequence risen in the cove so as to cover the causeway,\nwas rising rapidly, and there was a strong wind\xe2\x80\xa6. As they approached the causeway, the cove and\nthe condition of the water in it could not have escaped their notice. They saw, and observed, that the\ncauseway was entirely submerged, that a swift and strong current of turbid water was passing over\nit, that there was no rail or visible object of any kind, above the surface of the water, on the sides of\nthe causeway, by which they could be protected or guided in their course, and the depth of the water\nit was obviously impossible, before they went into it, with any degree of accuracy, to calculate or\ndetermine. East of the bridge, the water rose to the hubs of the fore wheels of their wagon, but they\nreached the bridge in safety. The bridge was raised about two feet and a half above the level of the\ncauseway. On the bridge they stopped, noticed and remarked upon the height of the water and the\nrapidity of its current, and felt some degree of alarm, but concluded to proceed. As they drove from\nthe bridge into the water on the west side of it, they began to apprehend the extent of their danger,\nand became frightened; the horse stopped; they urged him forward with the whip, and becoming\nmore frightened they probably attempted to turn around, and went off the causeway, nearly at a\nright angle with it, into the deep water on the north side\xe2\x80\xa6. [W]e think in driving upon the causeway\nat all, even easterly of the bridge, submerged as they saw it was, and with nothing visible above the\nsurface of the water to indicate its true location, these ladies disregarded the dictates of ordinary\nprudence and discretion\xe2\x80\xa6.\nOn th[e] bridge they were safe; and if they could not, unaided, have turned around and retraced\ntheir steps, they could, and should have remained where they were, until relieved from their\nunpleasant but not perilous situation. And again, when, after they had entered the water west of the\nbridge, their horse, true to the instincts of his noble nature, faltered, and stood still, they should have\nheeded his kindly admonition and there waited for assistance and deliverance, instead of forcing the\nanimal forward to his fate. The boat, by means of which one of them was rescued, with two boys in\nit, was sailing close at hand; a wagon, with two men in it, was approaching the causeway from the\nwest; and the residence of Mrs. French, with whom they had just been conversing, was within the\nreach of their voices. Their outcry would have brought almost immediate relief\xe2\x80\xa6.\n[T]he attempt of these ladies to pass over this causeway, and especially over the western part of\nit, was an act of rashness, which, upon the well settled principles of law applicable in cases of this\ncharacter, bars all claims in their behalf for damages from the town. We think no person of ordinary\ndiscretion in their circumstances, and exercising ordinary prudence and discretion, would have\nmade such an attempt.\n\n\xc3\xa3\n\nSimple Insomnia, Horse and Buggy Riding Through a Flooded River (CC BY 2.0).\n\n\x0cCASES & CRITIQUE\n\n137\n\nWe are not unmindful of the fact urged upon our attention by the plaintiff\xe2\x80\x99s counsel, that these\ntravelers were females. And in that fact, and in the timidity, inexperience, and want of skill which it\nimplies, we can find an explanation of their injudicious and fatal attempt to turn around in the water,\nbut no reason or excuse for the recklessness of their conduct in driving into it\xe2\x80\xa6. If men of ordinary\nprudence and discretion would regard the ability of the party inadequate for the purpose, without\nhazard or danger, the risk should not be assumed\xe2\x80\xa6. We think a new trial should be granted.\n1.\n\nQUESTIONS\nGender and Driving: Does Fox again rest on stereotypes about women drivers? If so,\nwhat work are those stereotypes doing in the court\xe2\x80\x99s legal analysis? What\xe2\x80\x99s the court\neffectively telling the twelve members of the (all-male) jury to remember at the new trial?\nDo they have to consider whether they, as men, would have crossed the causeway, or\nmust they instead determine whether a woman driver should have crossed?\nDENVER & RIO GRANDE RAILROAD CO. v. LORENTZEN\nUnited States Court of Appeals for the Eighth Circuit (1897)\n\nThayer, Judge:\n\n\xc3\xa3\n\nThis is a suit to recover damages for injuries sustained at a railroad\ncrossing by Mrs. Anna Marie Lorentzen, the defendant in error, who was\nthe plaintiff below. Mrs. Lorentzen was riding in a public conveyance,\ntermed a \xe2\x80\x98hack,\xe2\x80\x99 which was in charge of a driver\xe2\x80\xa6. While crossing the\ndefendant\xe2\x80\x99s track, the vehicle in which she was riding was struck and\noverturned by an outgoing train of the defendant company, as the plaintiff\nbelow alleged, because of the neglect of the engineer on the outgoing train\nto ring the bell or sound the whistle\xe2\x80\xa6.\nIn the course of its charge, the trial court used the following language:\nProbably we would not exact the same degree of care and diligence from a woman\nthat we would from a man under the same circumstances. I am inclined to think\nthat, if this plaintiff were a man suing for a recovery, I should be constrained to\nadvise you that he could be no more relieved from the duty of looking out for the\ntrain than the driver of the wagon; but this plaintiff being a woman, a person who\nis not accustomed, or very much accustomed, to such places, and to going in this\nfashion from one depot to another, I think it is a matter fairly for your\nconsideration whether she used the care and diligence which should be expected\nof a person in her situation, in going across this road.\nAn exception was taken to the aforesaid language, whereupon the court further instructed the\njury as follows:\nI do not state that to you, gentlemen, as a matter of law or proposition of law, but\nsimply as a matter for your consideration. I want you to consider whether there is\nless diligence to be exacted or expected from a woman than would be expected\nfrom a man. In fact, I am not considering any of these propositions as matters of\nlaw. I am merely explaining them for you to find and pass upon. The facts are with\nyou, gentlemen, and not with the court.\nThe exception first taken is insisted upon, notwithstanding the explanatory remarks of the court.\nWe think, however, that the exception is not well founded. Considering all that was said, it appears\nthat the jury was left at liberty to determine, as it had an undoubted right to do, whether, in view of\nthe plaintiff\xe2\x80\x99s sex and all the surrounding circumstances, she exercised such care and diligence as\n\n\xc3\xa3\n\nMIT-Libraries, Railroad Crossing Signal and Sign, Rutherford Avenue (CC BY-NC 2.0).\n\n\x0c138\n\nTORT LAW\n\nshould reasonably be expected of her. This was the proper test by which to determine if she was\nguilty of any contributory fault\xe2\x80\xa6. The judgment of the circuit court is affirmed.\n1.\n\nQUESTIONS\nMenlove Revisited: Can this case\xe2\x80\x94and indeed many of the other cases in this section\xe2\x80\x94\nbe squared with the view of ordinary care espoused in Menlove? If the jury determined\nthat we should expect \xe2\x80\x9cless diligence\xe2\x80\x9d from Lorentzen as a woman, why couldn\xe2\x80\x99t\nMenlove\xe2\x80\x99s apparent lack of good judgment immunize him for his carelessness?\nDENTON v. MISSOURI, KANSAS & TEXAS RAILWAY CO.\nSupreme Court of Kansas (1916)\n\nBurch, Justice:\nThe action was one for damages for injuries which a\nwoman, riding in an automobile driven by her husband,\nsustained by being struck by a switch engine on a street\ncrossing in the defendant\xe2\x80\x99s yards in the city of Parsons.\nThe plaintiff recovered, and the defendant appeals.\nThe plaintiff, her husband, F. M. Denton, her son, E.\nE. Denton, and her son\xe2\x80\x99s wife, occupied the automobile.\nF. M. Denton, sitting on the right-hand side, was driving\nthe car. E. E. Denton occupied the front seat with the\ndriver. The plaintiff and her daughter-in-law occupied\nthe rear seat. [They were driving on a city street across a wide set of 24 railroad tracks.] The plaintiff\nand her husband had not been on the crossing before. The plaintiff\xe2\x80\x99s son was an employ\xc3\xa9 of the\ndefendant, was familiar with the crossing, and said to his father that he would look out for trains.\nHe testified there was danger in stopping an automobile there because cars were likely to be moved\nat any time. The automobile proceeded as slowly as possible without killing the engine, at a speed of\nabout four or five miles per hour\xe2\x80\xa6.\nThe defendant\xe2\x80\x99s principal contentions are that the plaintiff was guilty of negligence as a matter\nof law, and that judgment should have been rendered for the defendant on the findings of fact\xe2\x80\xa6.\nThe plaintiff was required to take the precautions which a reasonably prudent person, not in the\nsituation of the automobile driver, but in her situation, would have taken. The argument is that she\nshould have stopped the automobile, or should have called her husband\xe2\x80\x99s attention to the conditions\nand requested him to exercise reasonable care. Why should the plaintiff have called her husband\xe2\x80\x99s\nattention to the conditions and exhorted him to use due care? She had confidence in his ability as a\ndriver. The conditions were just as obvious to him as to her. He could see and hear all she could see\nand hear. He was responsible for the operation of the automobile, not she, and she had no reason to\ndoubt that he was exercising his faculties with diligence. Besides this, there was another observer in\nthe front seat with the driver, who was in fact familiar with the crossing. His safety and his wife\xe2\x80\x99s\nsafety were at stake, and there is no evidence of any fact indicating to the plaintiff that her son was\nnot exercising his faculties of observation with diligence. Why ought the plaintiff to have arrogated\nto herself control over the automobile and commanded it to stop?... Her opportunities of\nobservation were not equal to those of her husband. She knew his ability as a driver and trusted him,\nand, what is more, she had the right to trust him.\nIn [a previous case in this Court] it was said:\nCommon sense would dictate that when a wife goes riding with her children in a\nrig driven by her husband she rightfully relies on him not to drive so as to imperil\nthose in his charge. The law does not depart from common sense by requiring her,\nunder the circumstances shown here, to impugn her husband\xe2\x80\x99s ability to drive and\nassume the prerogative to dictate to him the manner of driving.\nThis doctrine applies to the case of a wife riding in an automobile driven by her husband, unless\nshe should know him to be incompetent or under some disability. The judgment\xe2\x80\xa6is affirmed.\n\n\x0cCASES & CRITIQUE\n\n1.\n\n139\n\nQUESTIONS\nGender Roles: How might Denton support the idea that there are separate spheres for\nmen and women? In particular, how might it reinforce the masculinization of public\nspaces through tort law? Do decisions like Denton benefit women injured in accidents?\n\nThe following case includes sexist slurs and discusses harassment, assault, and racism.\nELLISON v. BRADY\nUnited States Court of Appeals for the Ninth Circuit (1991)\nBeezer, Judge:\n\n\xc3\xa3\n\nKerry Ellison appeals the district court\xe2\x80\x99s order granting\nsummary judgment to the Secretary of the Treasury on her\nsexual harassment action brought under Title VII of the\nCivil Rights Act of 1964. This appeal presents two important\nissues: (1) what test should be applied to determine whether\nconduct is sufficiently severe or pervasive to alter the\nconditions of employment and create a hostile working\nenvironment, and (2) what remedial actions can shield\nemployers from liability for sexual harassment by co-workers. The district court held that Ellison\ndid not state a prima facie case of hostile environment sexual harassment. We reverse and remand\xe2\x80\xa6.\nKerry Ellison worked as a revenue agent for the Internal Revenue Service in San Mateo,\nCalifornia. During her initial training in 1984 she met Sterling Gray, another trainee, who was also\nassigned to the San Mateo office. The two co-workers never became friends, and they did not work\nclosely together. Gray\xe2\x80\x99s desk was twenty feet from Ellison\xe2\x80\x99s desk, two rows behind and one row over.\nRevenue agents in the San Mateo office often went to lunch in groups. In June of 1986 when no one\nelse was in the office, Gray asked Ellison to lunch. She accepted. Gray had to pick up his son\xe2\x80\x99s\nforgotten lunch, so they stopped by Gray\xe2\x80\x99s house. He gave Ellison a tour of his house.\nEllison alleges that after the June lunch Gray started to pester her with unnecessary questions\nand hang around her desk. On October 9, 1986, Gray asked Ellison out for a drink after work. She\ndeclined, but she suggested that they have lunch the following week. She did not want to have lunch\nalone with him, and she tried to stay away from the office during lunch time. One day during the\nfollowing week, Gray uncharacteristically dressed in a three-piece suit and asked Ellison out for\nlunch. Again, she did not accept.\nOn October 22, 1986 Gray handed Ellison a note he wrote on a telephone message slip which read:\nI cried over you last night and I\xe2\x80\x99m totally drained today. I have never been in such\nconstant term oil (sic). Thank you for talking with me. I could not stand to feel\nyour hatred for another day.\nWhen Ellison realized that Gray wrote the note, she became shocked and frightened and left the\nroom. Gray followed her into the hallway and demanded that she talk to him, but she left the\nbuilding.\nEllison later showed the note to Bonnie Miller, who supervised both Ellison and Gray. Miller\nsaid \xe2\x80\x9cthis is sexual harassment.\xe2\x80\x9d Ellison asked Miller not to do anything about it. She wanted to try\nto handle it herself. Ellison asked a male co-worker to talk to Gray, to tell him that she was not\ninterested in him and to leave her alone. The next day, Thursday, Gray called in sick.\nEllison did not work on Friday, and on the following Monday, she started four weeks of training in\nSt. Louis, Missouri. Gray mailed her a card and a typed, single-spaced, three-page letter. She describes\nthis letter as \xe2\x80\x9ctwenty times, a hundred times weirder\xe2\x80\x9d than the prior note. Gray wrote, in part:\nI know that you are worth knowing with or without sex. Leaving aside the hassles\nand disasters of recent weeks. I have enjoyed you so much over these past few\n\xc3\xa3\n\nHOSTILE ADVANCES: THE KERRY ELLISON STORY (1996).\n\n\x0c140\n\nTORT LAW\n\nmonths. Watching you. Experiencing you from O so far away. Admiring your\nstyle and elan. Don\xe2\x80\x99t you think it odd that two people who have never even talked\ntogether, alone, are striking off such intense sparks. I will write another letter in\nthe near future.1\nExplaining her reaction, Ellison stated: \xe2\x80\x9cI just thought he was crazy. I thought he was nuts. I\ndidn\xe2\x80\x99t know what he would do next. I was frightened.\xe2\x80\x9d She immediately telephoned Miller. Ellison\ntold her supervisor that she was frightened and really upset. She requested that Miller transfer either\nher or Gray because she would not be comfortable working in the same office with him. Miller asked\nEllison to send a copy of the card and letter to San Mateo. Miller then telephoned her supervisor,\nJoe Benton, and discussed the problem. That same day she had a counseling session with Gray. She\ninformed him that he was entitled to union representation. During this meeting, she told Gray to\nleave Ellison alone. At Benton\xe2\x80\x99s request, Miller apprised the labor relations department of the\nsituation. She also reminded Gray many times over the next few weeks that he must not contact\nEllison in any way. Gray subsequently transferred to the San Francisco office on November 24, 1986.\nEllison returned from St. Louis in late November and did not discuss the matter further with Miller.\nAfter three weeks in San Francisco, Gray filed union grievances requesting a return to the San\nMateo office. The IRS and the union settled the grievances in Gray\xe2\x80\x99s favor, agreeing to allow him to\ntransfer back to the San Mateo office provided that he spend four more months in San Francisco\nand promise not to bother Ellison. On January 28, 1987, Ellison first learned of Gray\xe2\x80\x99s request in a\nletter from Miller explaining that Gray would return to the San Mateo office. The letter indicated\nthat management decided to resolve Ellison\xe2\x80\x99s problem with a six-month separation, and that it\nwould take additional action if the problem recurred.\nAfter receiving the letter, Ellison was \xe2\x80\x9cfrantic.\xe2\x80\x9d She filed a formal complaint alleging sexual\nharassment on January 30, 1987 with the IRS. She also obtained permission to transfer to San\nFrancisco temporarily when Gray returned. Gray sought joint counseling. He wrote Ellison another\nletter which still sought to maintain the idea that he and Ellison had some type of relationship.\nThe IRS employee investigating the allegation agreed with Ellison\xe2\x80\x99s supervisor that Gray\xe2\x80\x99s\nconduct constituted sexual harassment. In its final decision, however, the Treasury Department\nrejected Ellison\xe2\x80\x99s complaint because it believed that the complaint did not describe a pattern or\npractice of sexual harassment covered by the EEOC regulations. After an appeal, the EEOC affirmed\nthe Treasury Department\xe2\x80\x99s decision on a different ground. It concluded that the agency took\nadequate action to prevent the repetition of Gray\xe2\x80\x99s conduct.\nEllison filed a complaint in September of 1987 in federal district court. The court granted the\ngovernment\xe2\x80\x99s motion for summary judgment on the ground that Ellison had failed to state a prima\nfacie case of sexual harassment due to a hostile working environment. Ellison appeals\xe2\x80\xa6.\nThe parties ask us to determine if Gray\xe2\x80\x99s conduct, as alleged by Ellison, was sufficiently severe or\npervasive to alter the conditions of Ellison\xe2\x80\x99s employment and create an abusive working\nenvironment. The district court, with little Ninth Circuit case law to look to for guidance, held that\nEllison did not state a prima facie case of sexual harassment due to a hostile working environment.\nIt believed that Gray\xe2\x80\x99s conduct was \xe2\x80\x9cisolated and genuinely trivial.\xe2\x80\x9d We disagree\xe2\x80\xa6.\nThe government asks us to apply the reasoning of other courts which have declined to find Title\nVII violations on more egregious facts. In Scott v. Sears, Roebuck & Co., 798 F.2d 210 (7th Cir. 1986),\nthe Seventh Circuit analyzed a female employee\xe2\x80\x99s working conditions for sexual harassment. It\nnoted that she was repeatedly propositioned and winked at by her supervisor. When she asked for\nassistance, he asked \xe2\x80\x9cwhat will I get for it?\xe2\x80\x9d Co-workers slapped her buttocks and commented that\nshe must moan and groan during sex. The court examined the evidence to see if \xe2\x80\x9cthe demeaning\nconduct and sexual stereotyping caused such anxiety and debilitation to the plaintiff that working\nconditions were \xe2\x80\x98poisoned\xe2\x80\x99 within the meaning of Title VII.\xe2\x80\x9d The court did not consider the\nenvironment sufficiently hostile.\n\n1\nIn the middle of the long letter Gray did say \xe2\x80\x9cI am obligated to you so much that if you want me to leave you alone I\nwill. If you want me to forget you entirely, I can not do that.\xe2\x80\x9d\n\n\x0cCASES & CRITIQUE\n\n141\n\nSimilarly, in Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir. 1986), the Sixth Circuit\nrefused to find a hostile environment where the workplace contained posters of naked and partially\ndressed women, and where a male employee customarily called women \xe2\x80\x9cwhores,\xe2\x80\x9d \xe2\x80\x9ccunt,\xe2\x80\x9d \xe2\x80\x9cpussy,\xe2\x80\x9d\nand \xe2\x80\x9ctits,\xe2\x80\x9d referred to plaintiff as \xe2\x80\x9cfat ass,\xe2\x80\x9d and specifically stated, \xe2\x80\x9cAll that bitch needs is a good lay.\xe2\x80\x9d\nOver a strong dissent, the majority held that the sexist remarks and the pin-up posters had only a de\nminimis effect and did not seriously affect the plaintiff\xe2\x80\x99s psychological well-being.\nWe do not agree with the standards set forth in Scott and Rabidue, and we choose not to follow\nthose decisions\xe2\x80\xa6. It is the harasser\xe2\x80\x99s conduct which must be pervasive or severe, not the alteration\nin the conditions of employment. Surely, employees need not endure sexual harassment until their\npsychological well-being is seriously affected to the extent that they suffer anxiety and debilitation.\nAlthough an isolated epithet by itself fails to support a cause of action for a hostile environment,\nTitle VII\xe2\x80\x99s protection of employees from sex discrimination comes into play long before the point\nwhere victims of sexual harassment require psychiatric assistance\xe2\x80\xa6.\n[W]e believe that Gray\xe2\x80\x99s conduct was sufficiently severe and pervasive to alter the conditions of\nEllison\xe2\x80\x99s employment and create an abusive working environment. We first note that the required\nshowing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness\nor frequency of the conduct. See King v. Bd. Regents Univ. Wis. Sys., 898 F.2d 533 (7th Cir. 1990)\n(\xe2\x80\x9calthough a single act can be enough, generally, repeated incidents create a stronger claim of hostile\nenvironment, with the strength of the claim depending on the number of incidents and the intensity\nof each incident.\xe2\x80\x9d). For example, in Vance v. Southern Bell Telephone and Telegraph Co., 863 F.2d\n1503 (11th Cir. 1989), the court held that two incidents in which a noose was found hung over an\nemployee\xe2\x80\x99s work station were sufficiently severe to constitute a jury question on a racially hostile\nenvironment.\nNext, we believe that in evaluating the severity and pervasiveness of sexual harassment, we\nshould focus on the perspective of the victim. EEOC Compliance Manual (CCH) \xc2\xa7615 (1988)\n(courts \xe2\x80\x9cshould consider the victim\xe2\x80\x99s perspective and not stereotyped notions of acceptable\nbehavior.\xe2\x80\x9d) If we only examined whether a reasonable person would engage in allegedly harassing\nconduct, we would run the risk of reinforcing the prevailing level of discrimination. Harassers could\ncontinue to harass merely because a particular discriminatory practice was common, and victims of\nharassment would have no remedy.\nWe therefore prefer to analyze harassment from the victim\xe2\x80\x99s perspective. A complete\nunderstanding of the victim\xe2\x80\x99s view requires, among other things, an analysis of the different\nperspectives of men and women. Conduct that many men consider unobjectionable may offend\nmany women. See, e.g., Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988) (\xe2\x80\x9cA male\nsupervisor might believe, for example, that it is legitimate for him to tell a female subordinate that\nshe has a \xe2\x80\x98great figure\xe2\x80\x99 or \xe2\x80\x98nice legs.\xe2\x80\x99 The female subordinate, however, may find such comments\noffensive\xe2\x80\x9d); Yates v. Avco Corp., 819 F.2d 630 (6th Cir. 1987) (\xe2\x80\x9cmen and women are vulnerable in\ndifferent ways and offended by different behavior\xe2\x80\x9d). See also Ehrenreich, Pluralist Myths and\nPowerless Men: The Ideology of Reasonableness in Sexual Harassment Law, 99 Yale L. J. 1177 (1990)\n(men tend to view some forms of sexual harassment as \xe2\x80\x9charmless social interactions to which only\noverly-sensitive women would object\xe2\x80\x9d); Abrams, Gender Discrimination and the Transformation of\nWorkplace Norms, 42 Vand. L. Rev. 1183, 1203 (1989) (the characteristically male view depicts\nsexual harassment as comparatively harmless amusement).\nWe realize that there is a broad range of viewpoints among women as a group, but we believe\nthat many women share common concerns which men do not necessarily share.2 For example,\nbecause women are disproportionately victims of rape and sexual assault, women have a stronger\n2\n\nOne writer explains: \xe2\x80\x9cWhile many women hold positive attitudes about uncoerced sex, their greater physical and social\nvulnerability to sexual coercion can make women wary of sexual encounters. Moreover, American women have been raised\nin a society where rape and sex-related violence have reached unprecedented levels, and a vast pornography industry creates\ncontinuous images of sexual coercion, objectification and violence. Finally, women as a group tend to hold more restrictive\nviews of both the situation and type of relationship in which sexual conduct is appropriate. Because of the inequality and\ncoercion with which it is so frequently associated in the minds of women, the appearance of sexuality in an unexpected\ncontext or a setting of ostensible equality can be an anguishing experience.\xe2\x80\x9d Abrams, Gender Discrimination and the\nTransformation of Workplace Norms, 42 Vand. L. Rev. 1183, 1205 (1989).\n\n\x0c142\n\nTORT LAW\n\nincentive to be concerned with sexual behavior. Women who are victims of mild forms of sexual\nharassment may understandably worry whether a harasser\xe2\x80\x99s conduct is merely a prelude to violent\nsexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum\nwithout a full appreciation of the social setting or the underlying threat of violence that a woman\nmay perceive.\nIn order to shield employers from having to accommodate the idiosyncratic concerns of the rare\nhyper-sensitive employee, we hold that a female plaintiff states a prima facie case of hostile\nenvironment sexual harassment when she alleges conduct which a reasonable woman3 would\nconsider sufficiently severe or pervasive to alter the conditions of employment and create an abusive\nworking environment.4 Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1900) (sexual\nharassment must detrimentally affect a reasonable person of the same sex as the victim); Yates, 819\nF.2d at 637 (adopting \xe2\x80\x9creasonable woman\xe2\x80\x9d standard set out in Rabidue, 805 F.2d 611 (Keith, J.\ndissenting)); Comment, Sexual Harassment Claims of Abusive Work Environment Under Title VII,\n97 Harv. L. Rev. 1449 (1984); cf. State v. Wanrow, 559 P.2d 548 (Wash. 1977) (en banc) (adopting\nreasonable woman standard for self defense).\nWe adopt the perspective of a reasonable woman primarily because we believe that a sex-blind\nreasonable person standard tends to be male-biased and tends to systematically ignore the\nexperiences of women. The reasonable woman standard does not establish a higher level of\nprotection for women than men. Cf. Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (9th Cir. 1971)\n(invalidating under Title VII paternalistic state labor laws restricting employment opportunities for\nwomen). Instead, a gender-conscious examination of sexual harassment enables women to\nparticipate in the workplace on an equal footing with men. By acknowledging and not trivializing\nthe effects of sexual harassment on reasonable women, courts can work towards ensuring that\nneither men nor women will have to run a gauntlet of sexual abuse in return for the privilege of\nbeing allowed to work and make a living.\nWe note that the reasonable victim standard we adopt today classifies conduct as unlawful sexual\nharassment even when harassers do not realize that their conduct creates a hostile working\nenvironment. Well-intentioned compliments by co-workers or supervisors can form the basis of a\nsexual harassment cause of action if a reasonable victim of the same sex as the plaintiff would\nconsider the comments sufficiently severe or pervasive to alter a condition of employment and create\nan abusive working environment.5 That is because Title VII is not a fault-based tort scheme. Title\nVII is aimed at the consequences or effects of an employment practice and not at the motivation of\nco-workers or employers. To avoid liability under Title VII, employers may have to educate and\nsensitize their workforce to eliminate conduct which a reasonable victim would consider unlawful\nsexual harassment. See 29 C.F.R. \xc2\xa71604.11(f) (\xe2\x80\x9cPrevention is the best tool for the elimination of\nsexual harassment.\xe2\x80\x9d).\nThe facts of this case illustrate the importance of considering the victim\xe2\x80\x99s perspective. Analyzing\nthe facts from the alleged harasser\xe2\x80\x99s viewpoint, Gray could be portrayed as a modern-day Cyrano de\nBergerac wishing no more than to woo Ellison with his words. There is no evidence that Gray\nharbored ill will toward Ellison. He even offered in his \xe2\x80\x9clove letter\xe2\x80\x9d to leave her alone if she wished.\nExamined in this light, it is not difficult to see why the district court characterized Gray\xe2\x80\x99s conduct\nas isolated and trivial.\nEllison, however, did not consider the acts to be trivial. Gray\xe2\x80\x99s first note shocked and frightened\nher. After receiving the three-page letter, she became really upset and frightened again. She\nimmediately requested that she or Gray be transferred. Her supervisor\xe2\x80\x99s prompt response suggests\n\n3\n\nOf course, where male employees allege that co-workers engage in conduct which creates a hostile environment, the\nappropriate victim\xe2\x80\x99s perspective would be that of a reasonable man.\n4\nWe realize that the reasonable woman standard will not address conduct which some women find offensive. Conduct\nconsidered harmless by many today may be considered discriminatory in the future. Rogers, 454 F.2d at 238. Fortunately,\nthe reasonableness inquiry which we adopt today is not static. As the views of reasonable women change, so too does the\nTitle VII standard of acceptable behavior.\n5\nIf sexual comments or sexual advances are in fact welcomed by the recipient, they, of course, do not constitute sexual\nharassment. Title VII\xe2\x80\x99s prohibition of sex discrimination in employment does not require a totally desexualized work place.\n\n\x0cCASES & CRITIQUE\n\n143\n\nthat she too did not consider the conduct trivial. When Ellison learned that Gray arranged to return\nto San Mateo, she immediately asked to transfer, and she immediately filed an official complaint.\nWe cannot say as a matter of law that Ellison\xe2\x80\x99s reaction was idiosyncratic or hyper-sensitive. We\nbelieve that a reasonable woman could have had a similar reaction. After receiving the first bizarre\nnote from Gray, a person she barely knew, Ellison asked a co-worker to tell Gray to leave her alone.\nDespite her request, Gray sent her a long, passionate, disturbing letter. He told her he had been\n\xe2\x80\x9cwatching\xe2\x80\x9d and \xe2\x80\x9cexperiencing\xe2\x80\x9d her; he made repeated references to sex; he said he would write again.\nEllison had no way of knowing what Gray would do next. A reasonable woman could consider\nGray\xe2\x80\x99s conduct, as alleged by Ellison, sufficiently severe and pervasive to alter a condition of\nemployment and create an abusive working environment.\nSexual harassment is a major problem in the workplace. Adopting the victim\xe2\x80\x99s perspective\nensures that courts will not sustain ingrained notions of reasonable behavior fashioned by the\noffenders. Congress did not enact Title VII to codify prevailing sexist prejudices. To the contrary,\nCongress designed Title VII to prevent the perpetuation of stereotypes and a sense of degradation\nwhich serve to close or discourage employment opportunities for women. We hope that over time\nboth men and women will learn what conduct offends reasonable members of the other sex. When\nemployers and employees internalize the standard of workplace conduct we establish today, the\ncurrent gap in perception between the sexes will be bridged\xe2\x80\xa6.\nStephens, Judge, dissenting:\nThis case comes to us on appeal in the wake of the granting of a summary judgment motion.\nThere was no trial, therefore no opportunities for cross examination of the witnesses. In addition,\nthere are factual gaps in the record that can only lead by speculation. Consequently, I believe that it\nis an inappropriate case with which to establish a new legal precedent which will be binding in all\nsubsequent cases of like nature in the Ninth Circuit. I refer to the majority\xe2\x80\x99s use of the term\n\xe2\x80\x9creasonable woman,\xe2\x80\x9d a term I find ambiguous and therefore inadequate.\nNowhere in section 2000e of Title VII, the section under which the plaintiff in this case brought\nsuit, is there any indication that Congress intended to provide for any other than equal treatment in\nthe area of civil rights. The legislation is designed to achieve a balanced and generally gender neutral\nand harmonious workplace which would improve production and the quality of the employees\xe2\x80\x99\nlives. In fact, the Supreme Court has shown a preference against systems that are not gender or race\nneutral, such as hiring quotas. While women may be the most frequent targets of this type of conduct\nthat is at issue in this case, they are not the only targets. I believe that it is incumbent upon the court\nin this case to use terminology that will meet the needs of all who seek recourse under this section\nof Title VII. Possible alternatives that are more in line with a gender neutral approach include\n\xe2\x80\x9cvictim,\xe2\x80\x9d \xe2\x80\x9ctarget,\xe2\x80\x9d or \xe2\x80\x9cperson.\xe2\x80\x9d\nThe term \xe2\x80\x9creasonable man\xe2\x80\x9d as it is used in the law of torts, traditionally refers to the average\nadult person, regardless of gender, and the conduct that can reasonably be expected of him or her.\nFor the purposes of the legal issues that are being addressed, such a term assumes that it is applicable\nto all persons. Section 2000e of Title VII presupposes the use of a legal term that can apply to all\npersons and the impossibility of a more individually tailored standard. It is clear that the authors of\nthe majority opinion intend a difference between the \xe2\x80\x9creasonable woman\xe2\x80\x9d and the \xe2\x80\x9creasonable man\xe2\x80\x9d\nin Title VII cases on the assumption that men do not have the same sensibilities as women. This is\nnot necessarily true. A man\xe2\x80\x99s response to circumstances faced by women and their effect upon\nwomen can be and in given circumstances may be expected to be understood by men.\nIt takes no stretch of the imagination to envision two complaints emanating from the same\nworkplace regarding the same conditions, one brought by a woman and the other by a man.\nApplication of the \xe2\x80\x9cnew standard\xe2\x80\x9d presents a puzzlement which is born of the assumption that men\xe2\x80\x99s\neyes do not see what a woman sees through her eyes. I find it surprising that the majority finds no\nneed for evidence on any of these subjects. I am not sure whether the majority also concludes that\nthe woman and the man in question are also reasonable without evidence on this subject. I am\nirresistibly drawn to the view that the conditions of the workplace itself should be examined as\naffected, among other things, by the conduct of the people working there as to whether the\nworkplace as existing is conducive to fulfilling the goals of Title VII\xe2\x80\xa6.\n\n\x0c144\n\nTORT LAW\n\nIt is my opinion that the case should be reversed with instructions to proceed to trial. This would\ncertainly lead to filling in the factual gaps left by the scanty record, such as what happened at the\ntime of or after the visit of Ellison to Gray\xe2\x80\x99s house to cause her to be subsequently fearful of his\npresence. The circumstances existing in the work place where only men are employed are different\nthan they are where there are both male and female employees. The existence of the differences is\nreadily recognizable and the conduct of employees can be changed appropriately. This is what Title\nVII requires. Whether a man or a woman has sensibilities peculiar to the person and what they are\nis not necessarily known. Until they become known by manifesting themselves in an obvious way,\nthey do not become part of the circumstances of the work place. Consequently, the governing\nelement in the equation is the workplace itself, not concepts or viewpoints of individual employees.\nThis does not conflict with existing legal concepts.\nThe creation of the proposed \xe2\x80\x9cnew standard\xe2\x80\x9d which applies only to women will not necessarily\ncome to the aid of all potential victims of the type of misconduct that is at issue in this case. I believe\nthat a gender neutral standard would greatly contribute to the clarity of this and future cases in the\nsame area\xe2\x80\xa6.\n1.\n\nQUESTIONS\nPaul Revisited: Did Ellison have a plausible battery or assault claim against Gray?\n\n2.\n\nCommon Care: The court asserts that applying a gender-neutral standard \xe2\x80\x9cwould run\nthe risk of reinforcing the prevailing level of discrimination\xe2\x80\x9d because \xe2\x80\x9c[h]arassers could\ncontinue to harass merely because a particular discriminatory practice was common.\xe2\x80\x9d Is\nthat correct? Even setting aside the question of gender, is what we consider \xe2\x80\x9cordinary\xe2\x80\x9d\nor \xe2\x80\x9creasonable\xe2\x80\x9d the same as what we consider \xe2\x80\x9ccommon\xe2\x80\x9d?\n\n3.\n\nIntersectionality: Given the court\xe2\x80\x99s logic, do you think it would matter if Gray was gay?\nWhat if Ellison was gay? Or if they were both gay? Should any of this matter to the legal\nstandard?\nTHE T.J. HOOPER\nUnited States Court of Appeals for the Second Circuit (1932)\n\nHand, Judge:\n\n\xc3\xa3\n\nThe barges No. 17 and No. 30, belonging to the\nNorthern Barge Company, had lifted cargoes of coal at\nNorfolk, Virginia, for New York in March, 1928. They were\ntowed by two tugs of the petitioner, the \xe2\x80\x9cMontrose\xe2\x80\x9d and the\n\xe2\x80\x9cHooper,\xe2\x80\x9d and were lost off the Jersey Coast on March\ntenth, in an easterly gale. The cargo owners sued the barges\nunder the contracts of carriage; the owner of the barges sued\nthe tugs under the towing contract, both for its own loss and\nas bailee of the cargoes; the owner of the tug filed a petition to limit its liability. All the suits were\njoined and heard together, and the judge found that all the vessels were unseaworthy; the tugs,\nbecause they did not carry radio receiving sets by which they could have seasonably got warnings of\na change in the weather which should have caused them to seek shelter in the Delaware Breakwater\nen route. He therefore entered an interlocutory decree holding each tug and barge jointly liable to\neach cargo owner, and each tug for half damages for the loss of its barge. The petitioner appealed,\nand the barge owner appealed and filed assignments of error.\nEach tug had three ocean going coal barges in tow, the lost barge being at the end. The\n\xe2\x80\x9cMontrose,\xe2\x80\x9d which had the No. 17, took an outside course; the \xe2\x80\x9cHooper\xe2\x80\x9d with the No. 30, inside.\nThe weather was fair without ominous symptoms, as the tows passed the Delaware Breakwater about\nmidnight of March eighth, and the barges did not get into serious trouble until they were about\nopposite Atlantic City some sixty or seventy miles to the north. The wind began to freshen in the\n\xc3\xa3\n\nGeorge L. Smyth, Tugboat on the Monongahela (CC BY-NC-SA 2.0).\n\n\x0cCASES & CRITIQUE\n\n145\n\nmorning of the ninth and rose to a gale before noon; by afternoon the second barge of the Hooper\xe2\x80\x99s\ntow was out of hand and signaled the tug, which found that not only this barge needed help, but that\nthe No. 30 was aleak. Both barges anchored and the crew of the No. 30 rode out the storm until the\nafternoon of the tenth, when she sank, her crew having been meanwhile taken off. The No. 17 sprang\na leak about the same time; she too anchored at the Montrose\xe2\x80\x99s command and sank on the next\nmorning after her crew also had been rescued. The cargoes and the tugs maintain that the barges\nwere not fit for their service; the cargoes and the barges that the tugs should have gone into the\nDelaware Breakwater, and besides, did not handle their tows properly.\nThe evidence of the condition of the barges was very extensive, the greater part being taken out\nof court. As to each, the fact remains that she foundered in weather that she was bound to\nwithstand\xe2\x80\xa6 As to the cargoes, the charters excused the barges if \xe2\x80\x9creasonable means\xe2\x80\x9d were taken to\nmake them seaworthy; and the barge owners amended their answers during the trial to allege that\nthey had used due diligence in that regard. As will appear, the barges were certainly not seaworthy\nin fact, and we do not think that the record shows affirmatively the exercise of due diligence to\nexamine them. The examinations at least of the pumps were perfunctory; had they been sufficient\nthe loss would not have occurred\xe2\x80\xa6.\nA more difficult issue is as to the tugs. [The issue here is whether the tugboats were\n\xe2\x80\x9cunseaworthy\xe2\x80\x9d because they did not have working radios that would have allowed their captains to\nreceive the weather forecasts and reroute to avoid the storm.] The weather bureau at Arlington\nbroadcasts two predictions daily, at ten in the morning and ten in the evening. Apparently there are\nother reports floating about, which come at uncertain hours but which can also be picked up. The\nArlington report of the morning read as follows: \xe2\x80\x9cModerate north, shifting to east and southeast\nwinds, increasing Friday, fair weather to-night.\xe2\x80\x9d The substance of this [forecast] reached a tow\nbound north to New York about noon. [With evidence from the forecast and a failing barometer,\nthe ship\xe2\x80\x99s master decided to enter the Delaware Breakwater that afternoon. Though he may have\nbeen overcautious, three other towboats followed him into the Breakwater, also after having received\nthe forecast. The boats\xe2\x80\x99 masters all testified at trial.] [T]hey preferred to take no chances, and chances\nthey believed there were. Courts have not often such evidence of the opinion of impartial experts,\nformed in the very circumstances and confirmed by their own conduct at the time.\nMoreover, the \xe2\x80\x9cMontrose\xe2\x80\x9d and the \xe2\x80\x9cHooper\xe2\x80\x9d would have had the benefit of the evening report\nfrom Arlington had they had proper receiving sets. This predicted worse weather [with increased\nwind and rain]\xe2\x80\xa6. [I]f the four tows thought the first report enough, the second ought to have laid\nany doubts. The master of the \xe2\x80\x9cMontrose\xe2\x80\x9d himself, when asked what he would have done had he\nreceived a substantially similar report, said that he would certainly have put in. The master of the\n\xe2\x80\x9cHooper\xe2\x80\x9d was also asked for his opinion, and said that he would have turned back also, but this\nadmission is somewhat vitiated by the incorporation in the question of the statement that it was a\n\xe2\x80\x9cstorm warning,\xe2\x80\x9d which the witness seized upon in his answer. All this seems to us to support the\nconclusion of the judge that prudent masters, who had received the second warning, would have\nfound the risk more than the exigency warranted; they would have been amply vindicated by what\nfollowed\xe2\x80\xa6. Taking the situation as a whole, it seems to us that these masters would have taken\nundue chances, had they got the broadcasts.\nThey did not, because their private radio receiving sets, which were on board, were not in\nworking order. These belonged to them personally, and were partly a toy, partly a part of the\nequipment, but neither furnished by the owner, nor supervised by it. It is not fair to say that there\nwas a general custom among coastwise carriers so to equip their tugs. One line alone did it; as for\nthe rest, they relied upon their crews, so far as they can be said to have relied at all. An adequate\nreceiving set suitable for a coastwise tug can now be got at small cost and is reasonably reliable if\nkept up; obviously it is a source of great protection to their tows. Twice every day they can receive\nthese predictions, based upon the widest possible information, available to every vessel within two\nor three hundred miles and more. Such a set is the ears of the tug to catch the spoken word, just as\nthe master\xe2\x80\x99s binoculars are her eyes to see a storm signal ashore. Whatever may be said as to other\nvessels, tugs towing heavy coal laden barges, strung out for half a mile, have little power to maneuvre,\nand do not, as this case proves, expose themselves to weather which would not turn back stauncher\ncraft. They can have at hand protection against dangers of which they can learn in no other way.\n\n\x0c146\n\nTORT LAW\n\nIs it then a final answer that the business had not yet generally adopted receiving sets? There are,\nno doubt, cases where courts seem to make the general practice of the calling the standard of proper\ndiligence\xe2\x80\xa6. Indeed in most cases reasonable prudence is in fact\ncommon prudence; but strictly it is never its measure; a whole\ncalling may have unduly lagged in the adoption of new and\navailable devices. It never may set its own tests, however persuasive\nbe its usages. Courts must in the end say what is required; there are\nprecautions so imperative that even their universal disregard will\nnot excuse their omission. But here there was no custom at all as to\nreceiving sets; some had them, some did not; the most that can be\nurged is that they had not yet become general. Certainly in such a\ncase we need not pause; when some have thought a device\nnecessary, at least we may say that they were right, and the others\ntoo slack\xe2\x80\xa6. We hold the tugs [at fault] because had they been\nproperly equipped, they would have got the Arlington reports. The\ninjury was a direct consequence of this unseaworthiness.\n\xc3\xa3\n\n1.\n\n2.\n\nQUESTIONS\nKeeping Up with the Hands: The T.J. Hooper, one of America\xe2\x80\x99s most important tort\ndecisions, was written by Judge Learned Hand, one of America\xe2\x80\x99s most influential judges.\n(Yes, \xe2\x80\x9cLearned Hand\xe2\x80\x9d was his real name, not just a workplace nickname. His cousin,\nAugustus Noble Hand, was also a federal judge. Quite the family, in name and\nreputation.) In what way was Judge Hand promoting a reformist agenda for tort law\nthrough the so-called T.J. Hooper Rule? What role does he think custom should play in\ndetermining breach? Is custom dispositive or merely probative in establishing\n\xe2\x80\x9creasonable\xe2\x80\x9d care?\nTwelve Angry Men: Recall that jurors, not judges, usually determine breach. Are jurors\nin a good position to second-guess industry practices? Does it matter which industry?\nTORINO PROBLEM\n\nThe year is 2031. A peer-reviewed and industry-funded study has just been released showing\nthat switching entirely to self-driving cars in Georgia would reduce vehicle-related accidents by\n87,000 and deaths by 450 each year. The researchers say they\xe2\x80\x99ve finally proved what proponents of\nautonomous vehicles have long touted: car accidents are less likely when artificial intelligence makes\ndriving decisions instead of human intelligence. The U.S. Department of Transportation endorses\nthe study and declares that Americans should switch to self-driving cars as soon as possible. To\nspeed up the transition, the federal government and many states announce rebates and tax breaks\nfor anyone who trades in their old car for an autonomous vehicle.\nThe year is 2033. Clint, a proud libertarian, likes nothing more than taking his Ford Torino for\nlong drives. As he rolls down his window and takes in a deep breath of Oconee County air, he\nmutters to himself, \xe2\x80\x9cAh, this is the American dream.\xe2\x80\x9d Caught up in his moment of freedom, he fails\nto notice that he\xe2\x80\x99s drifting over into the left lane. Within seconds he collides into Sally\xe2\x80\x99s oncoming\nself-driving car. Though Clint miraculously emerges unscathed, Sally isn\xe2\x80\x99t so lucky. Her estate sues\nfor negligence and hires an expert to discuss the 2031 study and show that, based on tests done at\nthe accident scene, an autonomous vehicle wouldn\xe2\x80\x99t have veered into the wrong lane.\n(a) Does Clint\xe2\x80\x99s decision to drive a conventional constitute a negligent act?\n(b) How might the example of tort liability in the tugboat industry bolster or undermine\nyour argument?\n\n\xc3\xa3\n\nPhilippe Halsman, Learned Hand, National Portrait Gallery (1957).\n\n\x0cCASES & CRITIQUE\n\n147\n\nJOHNSON v. RIVERDALE ANESTHESIA ASSOCIATES\nSupreme Court of Georgia (2002)\nSears, Justice:\n\n\xc3\xa3\n\nCertiorari was granted in this medical malpractice\naction in order to consider the Court of Appeals\xe2\x80\x99\nruling forbidding the plaintiff from cross-examining\nthe defendants\xe2\x80\x99 expert witness as to how he personally\nwould have treated the plaintiffs\xe2\x80\x99 decedent. We\nconclude that because the standard of care in medical\nmalpractice cases is that which is employed by the\nmedical profession generally, and not what one\nindividual physician would do under the same or\nsimilar circumstances, how a testifying medical\nexpert personally would have treated a plaintiff or a plaintiff\xe2\x80\x99s decedent is not relevant to the issue\nof whether a defendant physician committed malpractice. Moreover, we conclude that how a\ntestifying medical expert personally would have treated a plaintiff or a plaintiff\xe2\x80\x99s decedent cannot be\nused to impeach the expert\xe2\x80\x99s credibility. Therefore, we affirm.\nThe decedent, Clair Johnson, suffered a severe adverse reaction to anesthesia she received during\nsurgery. The reaction caused Mrs. Johnson\xe2\x80\x99s oxygen supply to be interrupted, resulting in massive\nbrain trauma and death. Her husband, Donald Johnson, along with the administratrix of her estate\n(collectively \xe2\x80\x9cJohnson\xe2\x80\x9d), sued the anesthesiologist, Dr. Lawhead, and his employer, Riverdale\nAnesthesia Associates, Inc. (collectively \xe2\x80\x9cAnesthesia Associates\xe2\x80\x9d), alleging malpractice.\nAt trial, Johnson alleged that Anesthesia Associates had committed malpractice by failing to\n\xe2\x80\x9cpre-oxygenate\xe2\x80\x9d Mrs. Johnson. Pre-oxygenation is a procedure where, before surgery, a patient is\ngiven a measure of pure oxygen, providing her with a reserve to draw from, should her oxygen\nsupply be interrupted during surgery. The trial court granted Anesthesia Associates\xe2\x80\x99 motion in\nlimine to prevent Johnson from cross-examining the defendants\xe2\x80\x99 medical expert, Dr. Caplan, about\nwhether he, personally, would have pre-oxygenated Mrs. Johnson. After the jury found in favor of\nAnesthesia Associates, Johnson appealed, claiming the trial court erred by preventing Johnson from\ncross-examining Dr. Caplan as to whether he would have elected to pre-oxygenate Mrs. Johnson\xe2\x80\xa6.\n1. The crux of Johnson\xe2\x80\x99s complaint against Anesthesia Associates was the contention that the\nlatter violated the applicable standard of care by failing to pre-oxygenate Mrs. Johnson. Johnson\nattempted to establish this breach of care through the testimony of an expert witness. Johnson\nclaimed that if pre-oxygenation had been administered, Mrs. Johnson would have been protected\nagainst the low oxygen levels that occurred during surgery and that led to her death. For its part,\nAnesthesia Associates claimed that because its decision not to pre-oxygenate Mrs. Johnson was\nconsistent with the applicable standard of care, no malpractice occurred. In support of this\nargument, Anesthesia Associates presented the testimony of its own medical expert, Dr. Caplan.\nIt is axiomatic that in order to establish medical malpractice, the evidence presented by the\npatient must show a violation of the degree of care and skill required of a physician. Such standard\nof care is that which, under similar conditions and like circumstances, is ordinarily employed by the\nmedical profession generally. Thus, in medical malpractice actions, the applicable standard of care\nis that employed by the medical profession generally and not what one individual doctor thought\nwas advisable and would have done under the circumstances.\nAccordingly, in cases where expert medical testimony has been presented either to support or to\nrebut a claim that the applicable standard of care was breached, Georgia case law holds that questions\naimed at determining how the expert would have personally elected to treat the patient are\nirrelevant. The questioning of a medical expert witness should be disallowed as irrelevant when it\npertains to the expert\xe2\x80\x99s personal views and personal opinions as to the care and treatment he himself\nwould have rendered. Contrary to Johnson\xe2\x80\x99s argument, this is true regardless of whether the expert\xe2\x80\x99s\npersonal views are sought through direct testimony or cross-examination; as held by the trial court\n\xc3\xa3\n\nW.P. Paarz, Malpractice Lawsuit, Injury \xe2\x80\x93 Scrabble (CC BY-SA 2.0).\n\n\x0c148\n\nTORT LAW\n\nin this case, a defendant\xe2\x80\x99s expert witness is not required to answer questions on cross-examination\n\xe2\x80\x9cas to what course of treatment he personally would have followed.\xe2\x80\x9d\nIt follows that the trial court did not abuse its discretion in granting Anesthesia Associates\xe2\x80\x99\nmotion in limine to prohibit Johnson from cross-examining the defendant\xe2\x80\x99s expert witness as to\nwhether he personally would have pre-oxygenated the decedent, because such questioning was\nirrelevant to the issue of whether Anesthesia Associates breached the applicable standard of care.\n2. Questions aimed at determining how a defendant\xe2\x80\x99s medical expert personally would have\ntreated a plaintiff or a plaintiff\xe2\x80\x99s decedent also are irrelevant for purposes of impeaching the expert.\nAs explained above, a medical expert\xe2\x80\x99s personal practices are irrelevant to the issues in controversy\nin a malpractice case. It is axiomatic that a witness may not be impeached with irrelevant facts or\nevidence, and cross-examination should be confined to matters that are relevant to the case.\nMoreover, when confronted with the same or similar situation, different physicians will, quite\nnaturally, often elect to administer differing treatments, and will exercise their judgments regarding\na patient\xe2\x80\x99s care differently. However, merely because these procedures and treatments differ, it does\nnot automatically follow that one of them fails to comply with the applicable standard of care\xe2\x80\xa6.\n[T]estimony showing a mere difference in views between surgeons as to operating techniques, or as\nto medical judgment exercised, is irrelevant in a medical malpractice action when the differing views\nor techniques are both acceptable and customary within the applicable standard of care\xe2\x80\xa6.\nTherefore, the trial court did not improperly curtail Johnson\xe2\x80\x99s ability to impeach the testimony of\nAnesthesia Associates\xe2\x80\x99 medical expert, Dr. Caplan, by granting the defendants\xe2\x80\x99 motion in limine\xe2\x80\xa6.\nCarley, Justice, dissenting:\nIn a one-sentence footnote, the majority overrules Prevost v. Taylor, 396 S.E.2d 17 (Ga. Ct. App.\n1990), which was not even cited by the Court of Appeals. In my opinion, Prevost was simply\noverlooked by the Court of Appeals and should not be overruled by this Court because the rationale\nof that decision is so persuasive:\nIt is true, as defendant argues, that the issue in a medical professional negligence\naction is whether the treatment met the standard of care of the profession\ngenerally and not what any one individual doctor believes is advisable. However,\nthose cases cited by defendant involved instances where the only testimony\npresented to support plaintiff\xe2\x80\x99s claim is the individual view of one doctor and no\ntestimony was presented as to the standard of care generally practiced by the\nprofession. Here, plaintiff did not present the individual opinion of defendant\xe2\x80\x99s\nexpert for the purpose of establishing the acceptable standard of care but offered\nit to impeach the expert\xe2\x80\x99s opinion that the surgery performed by defendant met\nthe standard of care of the profession generally. Evidence tendered for\nimpeachment purposes need not be of the kind or quality required for proving the\nfacts.\nPrevost, 396 S.E.2d 17. \xe2\x80\x9cThe right of a thorough and sifting cross-examination shall belong to every\nparty as to the witnesses called against him.\xe2\x80\x9d OCGA \xc2\xa7 24-9-64.\nOver one hundred years ago, this Court held that it is the trial court\xe2\x80\x99s duty to allow a searching\nand skillful test of the witness\xe2\x80\x99 intelligence, memory, accuracy and veracity, and that it is better for\ncross-examination to be too free than too much restricted. Where the purpose is to impeach or\ndiscredit the witness, great latitude should be allowed by the trial court in cross-examination\xe2\x80\xa6.\nAs a general rule, the liability test to be employed by the court and the jury is the\n\xe2\x80\x9cstandard of care\xe2\x80\x9d that a reasonably prudent physician would exercise under the\nsame or similar circumstances as the defendant. Therefore, the ultimate test is not\nwhether the expert would perform a medical act and/or teach a medical act in the\nsame way or a different way as a particular defendant. However, such a line of\ninquiry usually is admissible on the issue of credibility. If, for example, the\nplaintiff\xe2\x80\x99s expert testifies that a defendant deviated from a certain standard of care,\nsaid expert\xe2\x80\x99s credibility certainly would be severely shaken if, in fact, it can be\n\n\x0cCASES & CRITIQUE\n\n149\n\nshown that this expert has performed a medical act in the same or similar manner\nas the defendant. If a defense expert has testified that a defendant\xe2\x80\x99s medical act\nconformed with a certain acceptable standard of care, the credibility of said\ntestimony certainly would be severely shaken, if said expert conceded on crossexamination that he personally does not perform and/or teach the medical act in\nthe same manner.\nPegalis & Wachsman, American Law of Medical Malpractice 2d \xc2\xa7 14:7(e) (1993). The identical\ncircumstances are present in this case. As demonstrated by an offer of proof, the defendants\xe2\x80\x99 medical\nexpert would have testified on cross-examination that he would have pre-oxygenated Mrs. Johnson\nif she had been his patient. Plaintiffs\xe2\x80\x99 counsel also sought to ask Dr. Caplan how he teaches his\nmedical students to treat patients in similar situations. Such testimony is particularly relevant to\ncredibility here, because Dr. Caplan testified on direct examination that there was nothing that could\nhave been done to make it safer for Mrs. Johnson to have the anesthesia.\nA material abridgement or denial of the substantial right of cross-examination of opposing\nwitnesses is material error and requires the grant of a new trial. Because the trial court did not allow\nplaintiffs to conduct a thorough and sifting cross-examination of the defendants\xe2\x80\x99 medical expert, I\ndissent to the affirmance of the Court of Appeals\xe2\x80\x99 judgment\xe2\x80\xa6.\n1.\n\nQUESTIONS\nTrust Me, I\xe2\x80\x99m a Doctor: Comparing Johnson with The T.J. Hooper, how does custom\nseem to play a different role when determining breach in cases of medical malpractice?\nWhat can explain these differing approaches? Is it a justifiable distinction? In what ways\nmight it be elitist? In what other circumstances do you think the Anti-T.J. Hooper Rule\nmight apply?\n\n2.\n\nThe What and the Where: Plaintiffs in malpractice cases often hire experts to establish\nthe standard of care. But which experts should they hire? At least two factors are key.\nFirst, the area of expertise: Should the expert focus on the profession generally or a\nspecialty (or even a sub-specialty) within the profession? Second, location: Should\nexperts testify as to customs nationally, in similar localities, or in the particular locality\nwhere the tort allegedly occurred?\n\n3.\n\nStare Decisis: In Condra v. Atlanta Orthopaedic Group, 681 S.E.2d 152 (Ga. 2009), the\nGeorgia Supreme Court overruled part of Johnson\xe2\x80\x99s holding. Charting a different course,\nthe justices in Condra held that evidence regarding an experts\xe2\x80\x99 personal practices is\nadmissible \xe2\x80\x9cboth as substantive evidence and to impeach the expert\xe2\x80\x99s opinion regarding\nthe applicable standard of care.\xe2\x80\x9d If you were a juror in a malpractice case, would you\nwant to know if the testifying expert follows the practices they say are customary? Why?\nDoes it make experts untrustworthy witnesses if they deviate from custom? Does your\nanswer depend on whether the expert shows greater or lesser care in their own practice?\nDR. DISASTER PROBLEM\n\nDr. Julio Vasquez is the head surgeon and CEO at Athenia Hospital. He\xe2\x80\x99s facing a major lawsuit\narising from an unfortunate series of events.\nRuth Coleman was rushed to the Athenia Hospital emergency room after sustaining serious\ninjuries during a charity bike race. The doctors assess her injuries and hurry her into surgery to stop\ninternal bleeding in her abdomen. Dr. Vasquez performs the surgery, stops the bleeding, and does a\nblood transfusion to help Ruth make a full recovery.\nLater that night, Dr. Vasquez is in a minor car accident. Exhausted from a long shift and rushing\nto get home to catch some sleep, he fails to yield on a right turn and collides with Angel Johnson,\nRuth\xe2\x80\x99s best friend, who was on his way to visit Ruth in the hospital. Dr. Vasquez is fine, but Angel\nsuffers whiplash.\nThe next day, Ruth isn\xe2\x80\x99t recovering as the doctors expected. Dr. Vasquez runs several tests and\ndiscovers that the blood given to Ruth post-surgery might have caused an infection. Doctors don\xe2\x80\x99t\n\n\x0c150\n\nTORT LAW\n\ngenerally test the blood given to patients during transfusions; instead, they simply administer the\nblood because specialists are supposed to test and treat it ahead of time. Dr. Vasquez, already stressed\nout from the previous day, doesn\xe2\x80\x99t inform Ruth about the potential infection, and nor do his\ncolleagues. Instead, he has the surgical interns run tests to diagnose Ruth, hoping that something\nelse is causing her symptoms. During their tests, the interns notice a foreign object in Ruth\xe2\x80\x99s\nabdomen. It turns out that the blood given to Ruth during surgery was contaminated and that Dr.\nVasquez inadvertently left a surgical pad in Ruth\xe2\x80\x99s abdomen during surgery. Shocked at his own\noversight, Dr. Vasquez immediately assigns Dr. Farmer to take over Ruth\xe2\x80\x99s case. Luckily, Dr. Farmer\nis able to both treat the infection and remove the pad without any serious complications.\nAfter Ruth\xe2\x80\x99s second surgery, she has to stay at Athenia Hospital for follow-up treatment and\nobservation during her recovery. The hospital doesn\xe2\x80\x99t provide any security outside patients\xe2\x80\x99 rooms,\nbut there haven\xe2\x80\x99t been any security issues in several years. One day, someone sneaks into Ruth\xe2\x80\x99s\nroom and steals her laptop while Ruth was receiving tests in another part of the hospital. After a few\nmore weeks of observation, Ruth makes a full recovery.\nTraumatized by the whole ordeal, Ruth wants to sue for as much as possible. Should any of the\nfollowing negligence claims be treated as malpractice, such that breach will be governed by custom?\n(a) Ruth sues Dr. Vasquez for using contaminated blood in the transfusion and for failing\nto inform her as soon as he suspected a contamination.\n(b) Ruth sues Dr. Vasquez for leaving the surgical pad in her abdomen.\n(c) Ruth sues Dr. Vasquez for providing inadequate security in the hospital.\n(d) Angel sues Dr. Vasquez for crashing into him while driving.\nUNITED STATES v. CARROLL TOWING CO.\nUnited States Court of Appeals for the Second Circuit (1947)\nHand, Judge:\n[Three piers in the Hudson River each had\nmultiple barges attached to them, with each\nbarge tied to the next. The \xe2\x80\x9cAnna C.\xe2\x80\x9d was the\ninnermost barge on the middle pier. It was\nowned by Conners Marine Co., leased by the\nPennsylvania Railroad Company, and carried\nflour owned by the United States Government.\nUnder the lease terms, Conners was required to\nprovide a bargee (an employee charged with\nsupervising the vessel, often by living on it)\ndaily from 8am\xe2\x80\x934pm. At all relevant times, the\nAnna C\xe2\x80\x99s bargee was not present on board.\nAt around 12pm on January 4, 1944, the\nharbormaster ordered a tugboat named the\nCarroll\xe2\x80\x94which was owned by Carroll Towing Co. and leased by Grace Line, Inc.\xe2\x80\x94to tow away a\nbarge on the northernmost pier. To do so, the Carroll crewmen and the harbormaster had to detach\nthat barge from the others on the neighboring piers, so they first pulled the ship alongside the\noutermost barge in the Anna C\xe2\x80\x99s chain. After the men checked the lines on the barges on that pier\nand the lines connecting the Anna C. to the pier, the Carroll pulled away.\nSoon after that effort, the entire row of barges broke away from the pier and began floating on\nthe river. The Anna C. hit a tanker docked at the neighboring pier. The Anna C. suffered a hole\nbelow the waterline without anyone noticing and sank soon after. At the lower court, evidence\nindicated that the tugs would have been able to push the Anna C. to shore before it sunk if they had\nbeen made aware of the hole in the hull.\nThe District Court found that Carroll Towing and Grace were equally at fault for negligently\ninspecting the lines holding the Anna C. to the pier. Therefore, they were each liable to Conners for\nhalf of the value of the damage to the Anna C.\n\n\x0cCASES & CRITIQUE\n\n151\n\nCarroll and Grace argued Conners should be liable because there was no bargee on the Anna C.\nduring these events. Admiralty law apportioned liability for property damage on a pro rata basis\namong all parties deemed legally responsible. Therefore, if Conners was not at fault, it would not be\nliable for any damage. If Conners was at fault, it would recover only 1/3 from Carroll and 1/3 from\nGrace, and Conners would be responsible for the final third.\nThe district judge found the lack of a bargee should not diminish Conners\xe2\x80\x99s recovery because\nthe absence did not contribute to the accident. The bargee was not required to anticipate negligence\nby the other men at the pier and thus was not negligent.]\xe2\x80\xa6\n[E]ven though we assume that the [Anna C.\xe2\x80\x99s] bargee was responsible for [maintaining the Anna\nC.\xe2\x80\x99s lines connecting it to the pier], there is not the slightest ground for saying that the [Carroll\ncrewmen] and the \xe2\x80\x9charbormaster\xe2\x80\x9d would have paid any attention to any protest which he might\nhave made, had he been there. We do not therefore attribute it as in any degree a fault of the \xe2\x80\x9cAnna\nC\xe2\x80\x9d that the flotilla broke adrift. Hence she may recover in full against the Carroll Company and the\nGrace Line for any injury she suffered from the contact with the tanker\xe2\x80\x99s propeller, which we shall\nspeak of as the \xe2\x80\x9ccollision damages.\xe2\x80\x9d On the other hand, if the bargee had been on board, and had\ndone his duty to his employer, he would have gone below at once, examined the injury, and called\nfor help from the \xe2\x80\x9cCarroll\xe2\x80\x9d and the Grace Line tug. Moreover, it is clear that these tugs could have\nkept the barge afloat, until they had safely beached her, and saved her cargo. This would have\navoided what we shall call the \xe2\x80\x9csinking damages.\xe2\x80\x9d Thus, if it was a failure in [Conners\xe2\x80\x99s] proper care\nof its own barge, for the bargee to be absent, the company can recover only one third of the \xe2\x80\x9csinking\xe2\x80\x9d\ndamages from the Carroll Company and one third from the Grace Line. For this reason the question\narises whether a barge owner is slack in the care of his barge if the bargee is absent.\nAs to the consequences of a bargee\xe2\x80\x99s absence from his barge there have been a number of\ndecisions; and we cannot agree that it is never ground for liability even to other vessels who may be\ninjured. [Precedent in this area varies greatly with a deep factual analysis in each case.]\nIt appears\xe2\x80\xa6that there is no general rule to determine when the absence of a bargee or other\nattendant will make the owner of the barge liable for injuries to other vessels if she breaks away from\nher moorings. However, in any cases where he would be so liable for injuries to others, obviously he\nmust reduce his damages proportionately, if the injury is to his own barge. It becomes apparent why\nthere can be no such general rule, when we consider the grounds for such a liability. Since there are\noccasions when every vessel will break from her moorings, and since, if she does, she becomes a\nmenace to those about her; the owner\xe2\x80\x99s duty, as in other similar situations, to provide against\nresulting injuries is a function of three variables: (1) The probability that she will break away; (2) the\ngravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves\nto bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury,\nL; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether\nB > PL. Applied to the situation at bar, the likelihood that a barge will break from her fasts and the\ndamage she will do, vary with the place and time; for example, if a storm threatens, the danger is\ngreater; so it is, if she is in a crowded harbor where moored barges are constantly being shifted about.\nOn the other hand, the barge must not be the bargee\xe2\x80\x99s prison, even though he lives aboard; he must\ngo ashore at times. We need not say whether, even in such crowded waters as New York Harbor a\nbargee must be aboard at night at all; it may be that the custom is otherwise,\xe2\x80\xa6 and that, if so, the\nsituation is one where custom should control. We leave that question open; but we hold that it is not\nin all cases a sufficient answer to a bargee\xe2\x80\x99s absence without excuse, during working hours, that he\nhas properly made fast his barge to a pier, when he leaves her. In the case at bar the bargee left at five\no\xe2\x80\x99clock in the afternoon of January 3rd, and the flotilla broke away at about two o\xe2\x80\x99clock in the\nafternoon of the following day, twenty-one hours afterwards. The bargee had been away all the time,\nand we hold that his fabricated story was affirmative evidence that he had no excuse for his absence.\nAt the locus in quo\xe2\x80\x94especially during the short January days and in the full tide of war activity\xe2\x80\x94\nbarges were being constantly \xe2\x80\x9cdrilled\xe2\x80\x9d in and out. Certainly it was not beyond reasonable\nexpectation that, with the inevitable haste and bustle, the work might not be done with adequate\ncare. In such circumstances we hold\xe2\x80\x94and it is all that we do hold\xe2\x80\x94that it was a fair requirement\nthat the Conners Company should have a bargee aboard (unless he had some excuse for his absence),\nduring the working hours of daylight\xe2\x80\xa6.\n\n\x0c152\n\nTORT LAW\n\n1.\n\nQUESTIONS\nJudging the Judge: Is Judge Hand\xe2\x80\x99s approach in The T.J. Hooper consistent with his\nformula in Carroll Towing? Or did his position change in the intervening fifteen years?\n\n2.\n\nA Hand, an Arm, and a Leg: The \xe2\x80\x9cburden of adequate precautions\xe2\x80\x9d is one variable in\nthe celebrated but controversial \xe2\x80\x9cHand Formula,\xe2\x80\x9d which is often framed as a form of\ncost-benefit analysis. What types of burden are appropriate to consider in a breach\nanalysis? Is the B in B > PL purely a question of money?\n\n3.\n\nAlgebraic Analysis: Two years later, in Moisan v. Loftus, 178 F.2d 148 (2d Cir. 1949),\nJudge Hand stressed that it\xe2\x80\x99s often impossible to conjure a \xe2\x80\x9cquantitative estimate\xe2\x80\x9d of any\nof the factors comprising the Hand Formula. If mathematical precision is illusory, what\xe2\x80\x99s\nthe point of his algebraic approach?\nRHODE ISLAND HOSPITAL TRUST NATIONAL BANK v. ZAPATA CORP.\nUnited States Court of Appeals for the First Circuit (1988)\n\nBreyer, Judge:\n\n\xc3\xa3\n\nThe issue that this appeal presents is whether Zapata\nCorporation has shown that the system used by Rhode Island\nHospital Trust National Bank for detecting forged checks\xe2\x80\x94a\nsystem used by a majority of American banks\xe2\x80\x94lacks the \xe2\x80\x9cordinary\ncare\xe2\x80\x9d that a bank must exercise under the Uniform Commercial\nCode \xc2\xa7 4-406(3), embodied here in Rhode Island General Laws,\n\xc2\xa7 6A-4-406(3).\n[The lower court made the following four determinations:]\n1. In early 1985, a Zapata employee stole some blank checks\nfrom Zapata. She wrote a large number of forged checks, almost\nall in amounts of $150 to $800 each, on Zapata\xe2\x80\x99s accounts at Rhode\nIsland Hospital Trust National Bank. The Bank, from March\nthrough July 1985, received and paid them.\n2. Bank statements that the Bank regularly sent Zapata first\nbegan to reflect the forged checks in early April 1985. Zapata failed\nto examine its statements closely until July 1985, when it found the\nforgeries. It immediately notified the Bank, which then stopped\nclearing the checks. The Bank had already processed and paid forged checks totaling $109,247.16.\n3. The Bank will (and legally must) reimburse Zapata in respect to all checks it cleared before April\n25, 1985 (or for at least two weeks after Zapata received the statement that reflected the forgeries).\n4. In respect to checks cleared on and after April 25, the Bank need not reimburse Zapata because\nZapata failed to \xe2\x80\x9cexercise reasonable care and promptness to examine the [bank] statement.\xe2\x80\x9d\nThe question before us is whether this last-mentioned conclusion is correct or whether Zapata\ncan recover for the post-April 24 checks on the theory that, even if it was negligent, so was the Bank.\nTo understand the question, one must examine U.C.C. \xc2\xa7 4-406, R.I. Gen. Laws \xc2\xa7 6A-4-406.\nOrdinarily a bank must reimburse an innocent customer for forgeries that it honors, but \xc2\xa7 6A-4-406\nmakes an important exception to the liability rule. The exception operates in respect to a series of\nforged checks, and it applies once a customer has had a chance to catch the forgeries by examining\nhis bank statements and notifying the bank but has failed to do so.\nThe statute, in relevant part, reads as follows:\n(1) When a bank sends to its customer a statement of account accompanied by items\npaid in good faith in support of the debit entries or holds the statement and\nitems pursuant to a request or instructions of its customer or otherwise in a\nreasonable manner makes the statement and items available to the\n\xc3\xa3\n\nCopyright \xc2\xa9 2015 RICurrency.com.\n\n\x0cCASES & CRITIQUE\n\n153\n\ncustomer, the customer must exercise reasonable care and promptness to\nexamine the statement and items to discover his unauthorized signature or any\nalteration on an item and must notify the bank promptly after discovery thereof.\n(2) If the bank establishes that the customer failed with respect to an item to\ncomply with the duties imposed on the customer by subsection (1) the\ncustomer is precluded from asserting against the bank\n(a) His unauthorized signature or any alteration on the item if the bank also\nestablishes that it suffered a loss by reason of such failure; and\n(b) An unauthorized signature or alteration by the same wrongdoer on any\nother item paid in good faith by the bank after the first item and statement\nwas available to the customer for a reasonable period not exceeding\nfourteen (14) calendar days and before the bank receives notification\nfrom the customer of any such unauthorized signature or alteration.\nThe statute goes on to specify an important exception to the exception. It says: \xe2\x80\x9c(3) The\npreclusion under subsection (2) does not apply if the customer establishes lack of ordinary care on\nthe part of the bank in paying the item(s).\xe2\x80\x9d Zapata\xe2\x80\x99s specific claim, on this appeal, is that it falls\nwithin this \xe2\x80\x9cexception to the exception\xe2\x80\x9d\xe2\x80\x94that the bank\xe2\x80\x99s treatment of the post-April 24 checks\nlacked \xe2\x80\x9cordinary care.\xe2\x80\x9d\xe2\x80\xa6\nThe statute\xe2\x80\xa6says that strict bank liability terminates fourteen days after the customer receives\nthe bank\xe2\x80\x99s statement unless \xe2\x80\x9cthe customer establishes lack of ordinary care.\xe2\x80\x9d And, the U.C.C.\ncommentary makes clear that the statute [places the burden of proof on the customer to demonstrate\nlack of ordinary care.]\xe2\x80\xa6\nThe record convinces us that Zapata failed to carry its burden of establishing \xe2\x80\x9clack of ordinary\ncare\xe2\x80\x9d on the part of the Bank. First, the Bank described its ordinary practices as follows: The Bank\nexamines all signatures on checks for more than $1,000. It examines signatures on checks between\n$100 and $1,000 (those at issue here) if it has reason to suspect a problem, e.g., if a customer has\nwarned it of a possible forgery or if the check was drawn on an account with insufficient funds. It\nexamines the signatures of a randomly chosen one percent of all other checks between $100 and\n$1,000. But, it does not examine the signatures on other checks between $100 and $1,000. Through\nexpert testimony, the Bank also established that most other banks in the nation follow this practice\nand that banking industry experts recommend it. Indeed, Trust National Bank\xe2\x80\x99s practices are\nconservative in this regard, as most banks set $2,500 or more, not $1,000, as the limit beneath which\nthey will not examine each signature.\nThis testimony made out a prima facie case of \xe2\x80\x9cordinary care.\xe2\x80\x9d Of course, Zapata might still try\nto show that the entire industry\xe2\x80\x99s practice is unreasonable, that it reflects lack of \xe2\x80\x9cordinary care.\xe2\x80\x9d The\nT.J. Hooper, 60 F.2d 737 (2d Cir. 1932) (Hand, J.). In doing so, however, the prima facie rule\ndoes impose on the party contesting the standards to establish that they are unreasonable,\narbitrary, or unfair.\nSecond, both bank officials and industry experts pointed out that this industry practice, in\ngeneral and in the particular case of the Trust National Bank, saved considerable expense, compared\nwith the Bank\xe2\x80\x99s pre-1981 practice of examining each check by hand. To be specific, the change saved\nthe Bank about $125,000 annually. Zapata accepts this testimony as accurate.\nThird, both a Bank official and an industry expert testified that changing from an \xe2\x80\x9cindividual\nsignature examination\xe2\x80\x9d system to the new \xe2\x80\x9cbulk-filing\xe2\x80\x9d system led to no significant increase in the\nnumber of forgeries that went undetected. Philip Schlernitzauer, a Bank vice-president and the\nofficer in charge of the Zapata account, testified that under the prior \xe2\x80\x9cindividual signature\nexamination\xe2\x80\x9d system, some forgeries still slipped through. The Bank\xe2\x80\x99s loss was about $10,000 to\n$15,000 per year. He also determined through a feasibility study that by implementing a \xe2\x80\x9cbulk-filing\xe2\x80\x9d\nsystem in which 99 percent of checks under $1,000 were not individually screened, the loss would\nremain between $10,000 and $15,000. Dr. Lipis, an executive vice-president of a large consulting\nfirm to the financial industry, testified that among its purposes was the following:\nWell, it improves the ability to return checks back to customers more correctly,\nsimply that the checks do not get misplaced when they are handled; generally [it]\n\n\x0c154\n\nTORT LAW\n\ncan improve the morale within the bank because the signature verification is very\ntedious, very difficult, and not a function that is liked by anybody who does it. In\naddition, it does not impact the amount of forgeries that are produced at the bank.\nZapata points to no testimony or other evidence tending to contradict these assertions. An\nindustry-wide practice that saves money without significantly increasing the number of forged\nchecks that the banks erroneously pay is a practice that reflects at least \xe2\x80\x9cordinary care.\xe2\x80\x9d\nFourth, even if one assumes\xe2\x80\xa6that the new system meant some increase in the number of\nundetected forged checks, Zapata still could not prevail, for it presented no evidence tending to show\nany such increased loss unreasonable in light of the costs that the new practice would save. Instead,\nit relied simply upon the assertion that costs saved the bank are irrelevant. But, that is not so, for\nwhat is reasonable or unreasonable insofar as \xe2\x80\x9cordinary care\xe2\x80\x9d or \xe2\x80\x9cdue care\xe2\x80\x9d or \xe2\x80\x9cnegligence\xe2\x80\x9d (and the\nlike) are concerned is often a matter of costs of prevention compared with correlative risks of loss.\nUnited States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947) (Hand, J.) (\xe2\x80\x9cduty\xe2\x80\x9d defined by\ncalculating probability of injury times gravity of harm to determine \xe2\x80\x9cburden of precaution\xe2\x80\x9d that is\nwarranted). One does not, for example, coat the base of the Grand Canyon with soft plastic nets to\ncatch those who might fall in, or build cars like armored tanks to reduce injuries in accidents even\nthough the technology exists. Compare Maine Yankee Atomic Power Co. v. National Labor Relations\nBoard, 624 F.2d 347 (1st Cir. 1980) (under Carroll Towing calculus, gravity of accident at nuclear\nreactor merits exercise of \xe2\x80\x9cextraordinary vigilance\xe2\x80\x9d by employees), with Commonwealth of\nMassachusetts v. Andrus, 594 F.2d 872 (1st Cir. 1979) (under Carroll Towing calculus, Secretary of\nInterior should assure that life systems of oceans not \xe2\x80\x9cunreasonably jeopardized\xe2\x80\x9d by oil and gas\nextraction activities). In arguing that the Bank provided \xe2\x80\x9cno care\xe2\x80\x9d in respect to the checks it did not\nexamine, Zapata simply assumed the very conclusion (namely, the unreasonableness of a selective\nexamination system) that it sought to prove. Aside from this assumption, its evidentiary cupboard\nis bare\xe2\x80\xa6.\nWe have found a few, more modern cases that arguably support Zapata\xe2\x80\x99s view, but they involve\npractices more obviously unreasonable than those presented here. See, e.g., Hanover Ins. Cos.\nv. Brotherhood State Bank, 482 F. Supp. 501 (D. Kan. 1979) (no ordinary care where no examination\nof any size checks, conspicuous forgeries); Perley v. Glastonbury Bank & Trust Co., 368 A.2d 149,\n153 (Conn. 1976) (no ordinary care where no authentication of endorsements of any\nsize checks); Indiana Nat\xe2\x80\x99l Corp. v. Faco, Inc., 400 N.E.2d 202 (Ind. Ct. App. 1980) (checks without\nsignatures paid, 30 check copies lost); Medford Irrigation Dist. v. W. Bank, 676 P.2d 329 (Or. Ct.\nApp. 1984) (same where no examination of any checks under $5,000)\xe2\x80\xa6.\nFor these reasons, the judgment of the district court is [a]ffirmed.\n1.\n\nQUESTIONS\nDollars and Sense: Applying the Hand Formula in Zapata arguably makes sense because\nthe case has features that are easier to value and easier to estimate. Do you agree?\n\n2.\n\nUtility Maximization: Does it make sense to think of breach as purely a question of\nfailing to take cost-justified care? Let\xe2\x80\x99s say that 3,000 people die every year in accidents\ncaused by driving while using a cellphone, but that we could trace significant financial\nbenefits to business deals conducted during people\xe2\x80\x99s daily commutes. Should a jury be\ninvited to consider this profitable use of people\xe2\x80\x99s time while driving? Does this kind of\nanalysis also mean that tort law implicitly endorses driving with greater care in wealthy\nneighborhoods?\n\n3.\n\nPlaying the Odds: Why shouldn\xe2\x80\x99t we judge reasonable care by simply comparing the\nburden of precaution and gravity of injury (B > L)? How does the P variable guide us\ntoward an ex-ante perspective of breach?\nBLACK ISLAND PROBLEM\n\nBlack Island, home to one of the world\xe2\x80\x99s most active volcanoes, is owned by the U.S. government,\nwhich performs environmental research there through the Black Island Research Division (BIRD).\n\n\x0cCASES & CRITIQUE\n\n155\n\nBIRD researchers are the island\xe2\x80\x99s only residents, but the government allows tourists to visit for the\nonce-in-a-lifetime experience of walking inside a crater. While BIRD\xe2\x80\x99s Special Volcanic Alert System\n(SVAS) measures the volcano\xe2\x80\x99s current activity at any given moment, it doesn\xe2\x80\x99t indicate future risk.\nInstead, BIRD uses SVAS to issue real-time volcanic alert bulletins on its website and to emergencyresponse agencies.\nEd is a geologist at BIRD, and his partner Felicity came for the weekend to enjoy the outdoors.\nWhen Ed checked SVAS on the morning of her arrival, the system wasn\xe2\x80\x99t showing anything unusual.\nUnfortunately, however, the volcano erupted that afternoon, resulting in 24 deaths and 44 injuries.\nFelicity and Ed were hiking at the time; Ed was killed and Felicity was injured. A volcanologist at the\nUniversity of Pompeii said that the tragedy was \xe2\x80\x9ca disaster waiting to happen,\xe2\x80\x9d but BIRD\xe2\x80\x99s Scientistin-Chief remarked to the press that \xe2\x80\x9cassessing volcanic risk robustly is bloody difficult!\xe2\x80\x9d\nFelicity sues BIRD, arguing that it negligently failed to anticipate and communicate the risk.\n(a) Can Felicity establish breach?\n(b) What if there had been two eruptions in the past three months, both after the SVAS\nsystem showed normal readings?\n(c) Does it matter that \xe2\x80\x9cassessing volcanic risk robustly is bloody difficult\xe2\x80\x9d?\nBYRNE v. BOADLE\nExchequer Court (1863)\n\xe2\x80\xa6[T]he evidence adduced on the part of the plaintiff\nwas as follows: A witness named Critchley said: \xe2\x80\x9cOn the\n18th July, I was in Scotland Road, on the right side going\nnorth, defendant\xe2\x80\x99s shop is on that side. When I was\nopposite to his shop, a barrel of flour fell from a window\nabove in defendant\xe2\x80\x99s house and shop, and knocked the\nplaintiff down. He was carried into an adjoining shop.\nA horse and cart came opposite the defendant\xe2\x80\x99s door.\nBarrels of flour were in the cart. I do not think the barrel\nwas being lowered by a rope. I cannot say: I did not see\nthe barrel until it struck the plaintiff. It was not swinging when it struck the plaintiff. It struck him\non the shoulder and knocked him towards the shop. No one called out until after the accident.\xe2\x80\x9d\nThe plaintiff said: \xe2\x80\x9cOn approaching Scotland Place and defendant\xe2\x80\x99s shop, I lost all recollection.\nI felt no blow. I saw nothing to warn me of danger. I was taken home in a cab. I was helpless for a\nfortnight.\xe2\x80\x9d (He then described his sufferings.) \xe2\x80\x9cI saw the path clear. I did not see any cart opposite\ndefendant\xe2\x80\x99s shop.\xe2\x80\x9d Another witness said: \xe2\x80\x9cI saw a barrel falling. I don\xe2\x80\x99t know how, but from\ndefendant\xe2\x80\x99s.\xe2\x80\x9d The only other witness was a surgeon, who described the injury which the plaintiff had\nreceived. It was admitted that the defendant was a dealer in flour.\nIt was submitted, on the part of the defendant, that there was no evidence of negligence for the\njury. The learned Assessor was of that opinion, and nonsuited the plaintiff, reserving leave to him\nto move the Court of Exchequer to enter the verdict for him with 50\xc2\xa3. damages, the amount assessed\nby the jury\xe2\x80\xa6.\n\xc3\xa3\n\nPollock, Chief Baron:\nThere are certain cases of which it may be said res ipsa loquitur, and this seems one of them. I\nthink it would be wrong to lay down as a rule that in no case can presumption of negligence arise\nfrom the fact of an accident. Suppose in this case the barrel had rolled out of the warehouse and\nfallen on the plaintiff, how could he possibly ascertain from what cause it occurred? It is the duty of\npersons who keep barrels in a warehouse to take care that they do not roll out, and I think that such\na case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out\n\n\xc3\xa3\n\nSara Lando, Flour (CC BY-NC-SA 2.0).\n\n\x0c156\n\nTORT LAW\n\nof a warehouse without some negligence, and to say that a plaintiff who is injured by it must call\nwitnesses from the warehouse to prove negligence seems to me preposterous.\nSo in the building or repairing a house, or putting pots on the chimneys, if a person passing along\nthe road is injured by something falling upon him, I think the accident alone would be prima facie\nevidence of negligence. Or if an article calculated to cause damage is put in a wrong place and does\nmischief, I think that those whose duty it was to put it in the right place are prima facie responsible,\nand if there is any state of facts to rebut the presumption of negligence, they must prove them. The\npresent case upon the evidence comes to this, a man is passing in front of the premises of a dealer in\nflour, and there falls down upon him a barrel of flour. I think it apparent that the barrel was in the\ncustody of the defendant who occupied the premises, and who is responsible for the acts of his\nservants who had the control of it; and in my opinion the fact of its falling is prima facie evidence of\nnegligence, and the plaintiff who was injured by it is not bound to shew that it could not fall without\nnegligence, but if there are any facts inconsistent with negligence it is for the defendant to prove them.\n1.\n\n2.\n\nQUESTIONS\nWell, Duh: Although some people quip that res ipsa loquitor is Latin for \xe2\x80\x9cduh,\xe2\x80\x9d it\nactually means \xe2\x80\x9cthe thing speaks for itself.\xe2\x80\x9d In Byrne, what is the thing and what is it\nsaying for itself?\nRes Ipsa\xe2\x80\x99s Role: Carefully ponder the following questions: Is res ipsa loquitor an\nindependent tort? Does it change the substantive theory of what it means for the\ndefendant\xe2\x80\x99s conduct to be negligent? Does it alter the plaintiff\xe2\x80\x99s burden of production or\nproof? Is there anything the defendant can do once res ipsa loquitor applies?\n\xc3\xa3\n\n\xc3\xa3\n\nWela Quan, Byrne v. Boadle, NY Bar Picture Book (CC BY-NC-ND 4.0).\n\n\x0cCASES & CRITIQUE\n\n157\n\nYBARRA v. SPANGARD\nSupreme Court of California (1944)\nGibson, Chief Justice:\n\n\xc3\xa3\n\nThis is an action for damages for personal injuries alleged\nto have been inflicted on plaintiff by defendants during the\ncourse of a surgical operation\xe2\x80\xa6.\nOn October 28, 1939, plaintiff consulted defendant Dr.\nTilley, who diagnosed his ailment as appendicitis, and made\narrangements for an appendectomy to be performed by\ndefendant Dr. Spangard at a hospital owned and managed by\ndefendant Dr. Swift. [Plaintiff was seen and treated by\nmultiple employees before being brought into surgery, several\nof whom are defendants in this action.]\xe2\x80\xa6 [Once in the\noperating room,] Defendant Dr. Reser, the anesthetist, also an employee of Dr. Swift, adjusted\nplaintiff for the operation, pulling his body to the head of the operating table and, according to\nplaintiff\xe2\x80\x99s testimony, laying him back against two hard objects at the top of his shoulders, about an\ninch below his neck. Dr. Reser then administered the anesthetic and plaintiff lost consciousness.\nWhen he awoke early the following morning he was in his hospital room attended by defendant\nThompson, the special nurse, and another nurse who was not made a defendant.\nPlaintiff testified that prior to the operation he had never had any pain in, or injury to, his right\narm or shoulder, but that when he awakened he felt a sharp pain about half way between the neck\nand the point of the right shoulder. He complained to the nurse, and then to Dr. Tilley, who gave\nhim\xe2\x80\xa6treatments while he remained in the hospital. The pain did not cease, but spread down to the\nlower part of his arm, and after his release from the hospital the condition grew worse. He was unable\nto rotate or lift his arm, and developed paralysis and atrophy of the muscles around the shoulder.\nHe received further treatments from Dr. Tilley until March, 1940, and then returned to work,\nwearing his arm in a splint on the advice of Dr. Spangard.\nPlaintiff also consulted Dr. Wilfred Sterling Clark, who had X-ray pictures taken which showed\nan area of diminished sensation below the shoulder and atrophy and wasting away of the muscles\naround the shoulder. In the opinion of Dr. Clark, plaintiff\xe2\x80\x99s condition was due to trauma or injury\nby pressure or strain, applied between his right shoulder and neck. Plaintiff was also examined by\nDr. Fernando Garduno, who expressed the opinion that plaintiff\xe2\x80\x99s injury was a paralysis of traumatic\norigin, not arising from pathological causes, and not systemic, and that the injury resulted in\natrophy, loss of use and restriction of motion of the right arm and shoulder.\nPlaintiff\xe2\x80\x99s theory is that the foregoing evidence presents a proper case for the application of the\ndoctrine of res ipsa loquitur, and that the inference of negligence arising therefrom makes the [lower\ncourt\xe2\x80\x99s decision] improper. Defendants takes the position that, assuming that plaintiff\xe2\x80\x99s condition\nwas in fact the result of an injury, there is no showing that the act of any particular defendant, nor\nany particular instrumentality, was the cause thereof. They attack plaintiff\xe2\x80\x99s action as an attempt to\nfix liability \xe2\x80\x9cen masse\xe2\x80\x9d on various defendants, some of whom were not responsible for the acts of\nothers; and they further point to the failure to show which defendants had control of the\ninstrumentalities that may have been involved. Their main defense may be briefly stated in two\npropositions: (1) that where there are several defendants, and there is a division of responsibility in\nthe use of an instrumentality causing the injury, and the injury might have resulted from the separate\nact of either one of two or more persons, the rule of res ipsa loquitur cannot be invoked against any\none of them; and (2) that where there are several instrumentalities, and no showing is made as to\nwhich caused the injury or as to the particular defendant in control of it, the doctrine cannot apply.\nWe are satisfied, however, that these objections are not well taken in the circumstances of this case.\nThe doctrine of res ipsa loquitur has three conditions: (1) the accident must be of a kind which\nordinarily does not occur in the absence of someone\xe2\x80\x99s negligence; (2) it must be caused by an agency\n\n\xc3\xa3\n\nRoyal Navy Media Archive, Medical Officer Onboard HMS Ark Royal 1994 (CC BY-NC 2.0).\n\n\x0c158\n\nTORT LAW\n\nor instrumentality within the exclusive control of the defendant; (3) it must not have been due to\nany voluntary action or contribution on the part of the plaintiff\xe2\x80\xa6.\nThere is, however, some uncertainty as to the extent to which res ipsa loquitur may be invoked\nin cases of injury from medical treatment. This is in part due to the tendency, in some decisions, to\nlay undue emphasis on the limitations of the doctrine, and to give too little attention to its basic\nunderlying purpose. The result has been that a simple, understandable rule of circumstantial\nevidence, with a sound background of common sense and human experience, has occasionally been\ntransformed into a rigid legal formula, which arbitrarily precludes its application in many cases\nwhere it is most important that it should be applied. If the doctrine is to continue to serve a useful\npurpose, we should not forget that the particular force and justice of the rule, regarded as a\npresumption throwing upon the party charged the duty of producing evidence, consists in the\ncircumstance that the chief evidence of the true cause, whether culpable or innocent, is practically\naccessible to him but inaccessible to the injured person.\nThe present case is of a type which comes within the reason and spirit of the doctrine more fully\nperhaps than any other. The passenger sitting awake in a railroad car at the time of a collision, the\npedestrian walking along the street and struck by a falling object or the debris of an explosion, are\nsurely not more entitled to an explanation than the unconscious patient on the operating table.\nViewed from this aspect, it is difficult to see how the doctrine can, with any justification, be so\nrestricted in its statement as to become inapplicable to a patient who submits himself to the care and\ncustody of doctors and nurses, is rendered unconscious, and receives some injury from\ninstrumentalities used in his treatment. Without the aid of the doctrine a patient who received\npermanent injuries of a serious character, obviously the result of someone\xe2\x80\x99s negligence, would be\nentirely unable to recover unless the doctors and nurses in attendance voluntarily chose to disclose\nthe identity of the negligent person and the facts establishing liability. If this were the state of the law\nof negligence, the courts, to avoid gross injustice, would be forced to invoke the principles of\nabsolute liability, irrespective of negligence, in actions by persons suffering injuries during the\ncourse of treatment under anesthesia. But we think this juncture has not yet been reached, and that\nthe doctrine of res ipsa loquitur is properly applicable to the case before us.\nThe condition that the injury must not have been due to the plaintiff\xe2\x80\x99s voluntary action is of\ncourse fully satisfied under the evidence produced herein; and the same is true of the condition that\nthe accident must be one which ordinarily does not occur unless someone was negligent. We have\nhere no problem of negligence in treatment, but of distinct injury to a healthy part of the body not\nthe subject of treatment, nor within the area covered by the operation. The decisions in this state\nmake it clear that such circumstances raise the inference of negligence, and call upon the defendant\nto explain the unusual result.\nThe argument of defendants is simply that plaintiff has not shown an injury caused by an\ninstrumentality under a defendant\xe2\x80\x99s control, because he has not shown which of the several\ninstrumentalities that he came in contact with while in the hospital caused the injury; and he has not\nshown that any one defendant or his servants had exclusive control over any particular\ninstrumentality. Defendants assert that some of them were not the employees of other defendants,\nthat some did not stand in any permanent relationship from which liability in tort would follow, and\nthat in view of the nature of the injury, the number of defendants and the different functions\nperformed by each, they could not all be liable for the wrong, if any.\nWe have no doubt that in a modern hospital a patient is quite likely to come under the care of a\nnumber of persons in different types of contractual and other relationships with each other\xe2\x80\xa6. But\nwe do not believe that either the number or relationship of the defendants alone determines whether\nthe doctrine of res ipsa loquitur applies. Every defendant in whose custody the plaintiff was placed\nfor any period was bound to exercise ordinary care to see that no unnecessary harm came to him\nand each would be liable for failure in this regard. Any defendant who negligently injured him, and\nany defendant charged with his care who so neglected him as to allow injury to occur, would be\nliable. The defendant employers would be liable for the neglect of their employees; and the doctor\nin charge of the operation would be liable for the negligence of those who became his temporary\nservants for the purpose of assisting in the operation.\n\n\x0cCASES & CRITIQUE\n\n159\n\nIn this connection, it should be noted that while the assisting physicians and nurses may be\nemployed by the hospital, or engaged by the patient, they normally become the temporary servants\nor agents of the surgeon in charge while the operation is in progress, and liability may be imposed\nupon him for their negligent acts under the doctrine of respondeat superior. Thus a surgeon has\nbeen held liable for the negligence of an assisting nurse who leaves a sponge or other object inside a\npatient, and the fact that the duty of seeing that such mistakes do not occur is delegated to others\ndoes not absolve the doctor from responsibility for their negligence\xe2\x80\xa6.\nIt may appear at the trial that, consistent with the principles outlined above, one or more\ndefendants will be found liable and others absolved, but this should not preclude the application of\nthe rule of res ipsa loquitur. The control, at one time or another, of one or more of the various\nagencies or instrumentalities which might have harmed the plaintiff was in the hands of every\ndefendant or of his employees or temporary servants. This, we think, places upon them the burden\nof initial explanation. Plaintiff was rendered unconscious for the purpose of undergoing surgical\ntreatment by the defendants; it is manifestly unreasonable for them to insist that he identify any one\nof them as the person who did the alleged negligent act.\nThe other aspect of the case which defendants so strongly emphasize is that plaintiff has not\nidentified the instrumentality any more than he has the particular guilty defendant. Here, again,\nthere is a misconception which, if carried to the extreme for which defendants contend, would\nunreasonably limit the application of the res ipsa loquitur rule. It should be enough that the plaintiff\ncan show an injury resulting from an external force applied while he lay unconscious in the hospital;\nthis is as clear a case of identification of the instrumentality as the plaintiff may ever be able to make.\nAn examination of the recent cases, particularly in this state, discloses that the test of actual\nexclusive control of an instrumentality has not been strictly followed, but exceptions have been\nrecognized where the purpose of the doctrine of res ipsa loquitur would otherwise be defeated. Thus,\nthe test has become one of right of control rather than actual control\xe2\x80\xa6.\n[Given the] liberalization of the tests for res ipsa loquitur, there can be no justification for the\nrejection of the doctrine in the instant case\xe2\x80\xa6. [I]f we accept the contention of defendants herein,\nthere will rarely be any compensation for patients injured while unconscious. A hospital today\nconducts a highly integrated system of activities, with many persons contributing their\nefforts\xe2\x80\xa6. The number of those in whose care the patient is placed is not a good reason for denying\nhim all reasonable opportunity to recover for negligent harm. It is rather a good reason for reexamination of the statement of legal theories which supposedly compel such a shocking result.\nWe do not at this time undertake to state the extent to which the reasoning of this case may be\napplied to other situations in which the doctrine of res ipsa loquitur is invoked. We merely hold that\nwhere a plaintiff receives unusual injuries while unconscious and in the course of medical treatment,\nall those defendants who had any control over his body or the instrumentalities which might have\ncaused the injuries may properly be called upon to meet the inference of negligence by giving an\nexplanation of their conduct. The judgment is reversed.\n1.\n2.\n\nQUESTIONS\nBend, Don\xe2\x80\x99t Break: How does Ybarra bend the rules of res ipsa loquitor to prevent the\ndoctrine from breaking?\nCone of Silence: In what way can Ybarra be justified as an information-forcing rule?\nMay res ipsa loquitor always be justified in this way, or is there something special about\nthe circumstances in Ybarra?\n\n\x0c160\n\nTORT LAW\n\nKAMBAT v. ST. FRANCIS HOSPITAL\nCourt of Appeals of the State of New York (1997)\nKaye, Chief Judge:\nIn this medical malpractice action, an 18-by-18-inch\nlaparotomy pad was discovered in the abdomen of\nplaintiffs\xe2\x80\x99 decedent following a hysterectomy performed\nby defendant physician at defendant hospital. The\nquestion before us is whether plaintiffs were entitled to\nsubmit the case to the jury on the theory of res ipsa\nloquitur. Contrary to the trial court and Appellate\nDivision, we conclude that the jury could have inferred\nnegligence under the doctrine of res ipsa loquitur, and\nthat defendants\xe2\x80\x99 evidence of due care and alternative\ncauses of the injury did not remove the doctrine from the case. The trial court\xe2\x80\x99s refusal to instruct\nthe jury regarding res ipsa loquitur thus mandates reversal and a new trial.\nIn August 1986, defendant physician Ralph Sperrazza performed an abdominal hysterectomy on\ndecedent, Florence Fenzel, at defendant St. Francis Hospital. Ten laparotomy pads were marked and\navailable for the operation, and Dr. Sperrazza placed several of these pads in decedent\xe2\x80\x99s peritoneal\ncavity, next to the bowel, during the surgery. The patient was unconscious throughout the\nprocedure.\nIn the months following the operation decedent\xe2\x80\x99s condition was at first unremarkable.\nEventually, however, she began to complain of stomach pain, and on November 30, 1986 X-rays\ntaken at another hospital revealed a foreign object in her abdomen. On December 5, a laparotomy\npad measuring 18-by-18 inches\xe2\x80\x94similar to those used during the hysterectomy\xe2\x80\x94was discovered\nfully or partially inside decedent\xe2\x80\x99s bowel, and it was removed by Dr. Robert Barone. This finding\nwas so unanticipated that a photographer was called to document it. Decedent\xe2\x80\x99s condition continued\nto deteriorate, and she died on December 29, 1986, from infection-related illnesses.\nPlaintiffs, decedent\xe2\x80\x99s husband and children, commenced this medical malpractice action against\nDr. Sperrazza and St. Francis Hospital, alleging that defendants were negligent in leaving the\nlaparotomy pad inside decedent\xe2\x80\x99s abdomen. At trial, plaintiffs presented evidence that the pad\nremoved from decedent was the same type and size as those supplied to St. Francis Hospital in 1986\nand commonly used during hysterectomies. Plaintiffs also adduced testimony that the pads were\nprovided only to hospitals with operating rooms, where patients would not have access to them\xe2\x80\xa6.\n[D]efendants introduced evidence that standard procedures were followed during the operation,\nand that the number of sponges, medical instruments and laparotomy pads used and removed were\ncounted several times, carefully and accurately. Defendants\xe2\x80\x99 experts, moreover, opined that the pad\nhad not been left inside decedent but, rather, that she had swallowed it. According to defendants\xe2\x80\x99\nwitnesses, laparotomy pads were frequently left in places accessible to patients in hospitals; decedent\nsuffered from chronic depression; overuse of sleeping pills could suppress the gag reflex and permit\nher to swallow the pad; and the human gastrointestinal tract would allow the pad to pass to the small\nbowel. Plaintiffs\xe2\x80\x99 expert witnesses, by contrast, agreed that it would be anatomically impossible to\nswallow the laparotomy pad or for a swallowed pad to reach the bowel.\nThe trial court denied plaintiffs\xe2\x80\x99 request to charge res ipsa loquitur, and the jury returned a\ndefendants\xe2\x80\x99 verdict. Plaintiffs moved to set aside the verdict and either enter judgment in their favor\nor grant a new trial, arguing that the trial court erred in refusing to deliver the requested charge. The\ncourt denied the motion, concluding that the lengthy and inconsistent expert testimony\ndemonstrated that resolution of the case was not within a lay jury\xe2\x80\x99s experience and, thus, res ipsa\nloquitur was not applicable\xe2\x80\xa6.\nWhere the actual or specific cause of an accident is unknown, under the doctrine of res ipsa\nloquitur a jury may in certain circumstances infer negligence merely from the happening of an event\nand the defendant\xe2\x80\x99s relation to it. Res ipsa loquitur simply recognizes what we know from our\neveryday experience: that some accidents by their very nature would ordinarily not happen without\nnegligence.\n\n\x0cCASES & CRITIQUE\n\n161\n\nOnce a plaintiff\xe2\x80\x99s proof establishes the following three conditions, a prima facie case of\nnegligence exists and plaintiff is entitled to have res ipsa loquitur charged to the jury. First, the event\nmust be of a kind that ordinarily does not occur in the absence of someone\xe2\x80\x99s negligence; second, it\nmust be caused by an agency or instrumentality within the exclusive control of the defendant; and\nthird, it must not have been due to any voluntary action or contribution on the part of the plaintiff.\nTo rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other\ncauses of the injury. It is enough that the evidence supporting the three conditions afford a rational\nbasis for concluding that it is more likely than not that the injury was caused by defendant\xe2\x80\x99s\nnegligence. Stated otherwise, all that is required is that the likelihood of other possible causes of the\ninjury be so reduced that the greater probability lies at defendant\xe2\x80\x99s door. Res ipsa loquitur thus\ninvolves little more than application of the ordinary rules of circumstantial evidence to certain\nunusual events, and it is appropriately charged when, upon a commonsense appraisal of the\nprobative value of the circumstantial evidence, the inference of negligence is justified.\nSubmission of res ipsa loquitur, moreover, merely permits the jury to infer negligence from the\ncircumstances of the occurrence. The jury is thus allowed\xe2\x80\x94but not compelled\xe2\x80\x94to draw the\npermissible inference. In those cases where conflicting inferences may be drawn, choice of inference\nmust be made by the jury.\nHere, the Appellate Division majority concluded that plaintiffs\xe2\x80\x99 proof at trial failed to satisfy any\nof the three conditions. With regard to the first requirement in particular, the appellate court agreed\nwith the trial court that a lay jury could not determine whether the occurrence was of a kind that\nordinarily does not occur in the absence of negligence without evaluating the parties\xe2\x80\x99 expert\ntestimony and, therefore, res ipsa loquitur did not apply.\nIn the typical res ipsa loquitur case, the jury can reasonably draw upon past experience common\nto the community for the conclusion that the adverse event generally would not occur absent\nnegligent conduct. In medical malpractice cases, however, the common knowledge and everyday\nexperience of lay jurors may be inadequate to support this inference. Courts and commentators across\nthe country have come to varying conclusions as to whether expert testimony can be used to educate\nthe jury as to the likelihood that the occurrence would take place without negligence where a basis of\ncommon knowledge is lacking. Courts in this State, as well, have differed as to whether expert\ntestimony can supply the necessary foundation for consideration of res ipsa loquitur by a jury.\nWidespread consensus exists, however, that a narrow category of factually simple medical\nmalpractice cases requires no expert to enable the jury reasonably to conclude that the accident\nwould not happen without negligence. Not surprisingly, the oft-cited example is where a surgeon\nleaves a sponge or foreign object inside the plaintiff\xe2\x80\x99s body. As explained by Prosser and Keeton in\ntheir classic treatise: \xe2\x80\x9cThere are, however, some medical and surgical errors on which any layman is\ncompetent to pass judgment and conclude from common experience that such things do not happen\nif there has been proper skill and care. When an operation leaves a sponge or implement in the\npatient\xe2\x80\x99s interior, the thing speaks for itself without the aid of any expert\xe2\x80\x99s advice.\xe2\x80\x9d\nManifestly, the lay jury here did not require expert testimony to conclude that an 18-by-18-inch\nlaparotomy pad is not ordinarily discovered inside a patient\xe2\x80\x99s abdomen following a hysterectomy in\nthe absence of negligence. Thus, plaintiffs\xe2\x80\x99 undisputed proof that this occurred satisfied the first\nrequirement of res ipsa loquitur. We therefore need not resolve today the question whether res ipsa\nloquitur is applicable in medical malpractice cases in which the jury is incapable of determining\nwhether the first res ipsa loquitur condition has been met without the aid of expert testimony.\nPlaintiffs\xe2\x80\x99 expert testimony regarding how the presence of the pad led to decedent\xe2\x80\x99s ultimate\ninjury and contradicting defendants\xe2\x80\x99 alternative theory that decedent swallowed the pad did not\nrender res ipsa loquitur inapplicable. This evidence was probative of the questions of exclusive\ncontrol and absence of contributory conduct on the part of decedent\xe2\x80\x94the second and third\nfoundational elements of res ipsa loquitur. The debate over the use of expert testimony in res ipsa\nloquitur cases, however, centers primarily on the first element, since it is with regard to the\nlikelihood that the accident would not happen without negligence that the jury is generally expected\nto draw upon its common knowledge.\nTurning to these remaining res ipsa loquitur conditions, plaintiffs\xe2\x80\x99 evidence that similar pads\nwere used during decedent\xe2\x80\x99s surgery, that decedent was unconscious throughout the operation, that\n\n\x0c162\n\nTORT LAW\n\nlaparotomy pads are not accessible to patients and that it would be anatomically impossible to\nswallow such pads sufficed to allow the jury to conclude that defendants had exclusive control of the\nlaparotomy pad at the time of the alleged act of negligence and that it did not result from any\nvoluntary action by the patient.\nWe agree with the Appellate Division dissenters, moreover, that defendants\xe2\x80\x99 evidence tending to\nrebut the three conditions did not disqualify this case from consideration under res ipsa loquitur.\nPlaintiffs were not obligated to eliminate every alternative explanation for the event. Defendants\xe2\x80\x99\nevidence that they used due care and expert testimony supporting their competing theory that\ndecedent might have had access to laparotomy pads and inflicted the injury upon herself by\nswallowing the pad merely raised alternative inferences to be evaluated by the jury in determining\nliability. The undisputed fact remained in evidence that a laparotomy pad measuring 18 inches\nsquare was discovered in decedent\xe2\x80\x99s abdomen: from this the jury may still be permitted to infer that\nthe defendant\xe2\x80\x99s witnesses are not to be believed, that something went wrong with the precautions\ndescribed, that the full truth has not been told. Thus, the inference of negligence could reasonably\nhave been drawn upon a commonsense appraisal of the probative value of the circumstantial\nevidence, and it was error to refuse plaintiffs\xe2\x80\x99 request to charge res ipsa loquitur.\xe2\x80\xa6 Accordingly, the\norders of the Appellate Division should be reversed, with costs, and a new trial granted as to the first\nand second causes of action of the complaint.\n1.\n\n2.\n\nQUESTIONS\nRebutting Res Ipsa: The court notes the three conditions that support the doctrine of\nres ipsa loquitor. How does St. Francis Hospital attempt to challenge those conditions\nhere? Why wasn\xe2\x80\x99t it ultimately successful?\nRecognizing Res Ipsa: Outside of the hospital context, can you think of plausible and\nlikely examples of when res ipsa loquitor would apply?\n\nD. Cause\nMUCKLER v. BUCHL\nSupreme Court of Minnesota (1967)\nSheran, Justice:\n\n\xc3\xa3\n\n\xe2\x80\xa6About 8:30 p.m., on August 11, 1962, plaintiff\xe2\x80\x99s decedent, a 55year-old woman, fell down a flight of stairs extending from the landing\nbetween the first and second floors down to the first floor of the\nMinneapolis apartment house in which she had been a tenant for 7\nyears. She broke her hip in the fall and was taken to a hospital where\nshe died less than 4 months later\xe2\x80\xa6.\n[D]ecedent\xe2\x80\x99s husband commenced an action for death by wrongful\nact against the apartment-house owner. At trial\xe2\x80\xa6plaintiff claimed the\naccident was caused by defendant\xe2\x80\x99s negligence in having the stairs too\ndimly lit for safety contrary to a relevant ordinance and to his\ncommon-law duty. Pursuant to a verdict in favor of plaintiff,\n\xe2\x80\xa6judgment for $17,000 was entered\xe2\x80\xa6.\nDoes the evidence justify a finding that the fall which caused injuries resulting in the death of\nplaintiff\xe2\x80\x99s decedent was caused by the negligence of defendant in failing properly to light the stairway\nin the apartment building where the fall occurred?\xe2\x80\xa6\nWere it not for our decision in Majerus v. Guelsow, 113 N.W.2d 450 (Minn. 1962), we would be\nhesitant to affirm the jury\xe2\x80\x99s implicit finding that decedent was caused to fall because of the darkness\nof the stairway, there being no direct evidence on the issue.\nJust before she fell, decedent was walking down the stairs directly behind a departing guest who\nhad been visiting her in the second-floor apartment occupied by decedent and her husband. The\n\xc3\xa3\n\nShawn Econo, Ambiguity (CC BY-NC-SA 2.0).\n\n\x0cCASES & CRITIQUE\n\n163\n\nguest gave the following description of the events occurring between the time she left decedent\xe2\x80\x99s\napartment and the time the critical injury was sustained:\nQ. As you went out into the hallway and as the door of the apartment was closed,\nhow can you describe the condition of the light at that time?\nThe Witness: It was dark. I could distinguish the hand rail and I hung onto that\nbecause I could not tell where the steps were.\nQ. I believe there is one flight of steps there from that second floor landing down\nabout five or six steps to a landing between floors; is that your recollection?\nA. Yes, sir.\nMr. Green [plaintiff\xe2\x80\x99s attorney]: Now, you got down to the first floor landing, or\nthe landing between floors, without any particular incident?\nA. Yes.\nQ. Did you then make the turn to go down the second flight to the landing on the\nfirst floor?\nA. Yes, sir.\nQ. Tell us what happened as you went down that second flight of stairs?\nA. I was being very careful. I couldn\xe2\x80\x99t tell where the steps were so I had to feel my\nway down, and then I don\xe2\x80\x99t know how far I was from the bottom, probably three\nor four steps, and I heard something behind me and I imagined it was Mrs.\nMuckler tripping or falling\xe2\x80\x94I couldn\xe2\x80\x99t tell then\xe2\x80\x94so I instinctively put my hand\nout and there was nothing there, and I heard the scream and the thump and there\nshe was.\nQ. At this point where you heard this noise, had Mrs. Muckler been behind you?\nA. Yes, she was behind me.\nQ. Where did Mrs. Muckler then finally wind up?\nA. I heard the thump and the scream almost simultaneously and then the doors\nfrom the first floor opened so then I could see her.\nQ. Where was she?\nA. Lying on the floor, on the landing.\nIf decedent ever said what caused her to fall, the record does not disclose it.\nAn electrical engineer who measured the light at the place of the accident at a time when,\naccording to the evidence, conditions were substantially the same as those prevailing at the time of\nthe event gave testimony from which the jury could infer that the light at and near the place of the\noccurrence measured one-tenth of a foot-candle or less\xe2\x80\x94significantly below the two foot-candles\nrequired by an ordinance of the city of Minneapolis.\nAt the time of the accident the stairway was not lighted by artificial illumination. Defendant\xe2\x80\x99s\nagent was in exclusive control of the switch to the lights which could have been used for this purpose.\nExcept for the inadequacy of the lighting, the evidence shows that there was no defect in the\nstairway to which the fall could be attributed. A handrail was in place.\nDecedent, about 55 years of age, was in good health except for a diabetic condition which under\nthe evidence the jury could have found to be controlled. Also there was evidence from which the\njury could have found that decedent did not consume intoxicating liquors on the day of the accident\nor at any other time. There is no evidence indicating that decedent had fallen while descending the\nsteps of the apartment building on any prior occasion during the 7 years she lived there as a tenant.\nThe evidence is consistent with the theory that decedent fell on the stairway because of the\ndarkness. But it is also consistent with the possibility that the fall would have occurred no matter\nwhat the lighting condition might have been. We can eliminate the diabetic condition as a probable\nexplanation of the occurrence in view of the testimony of competent witnesses that decedent was\nnot suffering observable symptoms before and as she started down the stairway. The possibility that\nthe fall was attributable to intoxication can be eliminated on the basis of testimony to the effect that\ndecedent never used intoxicants. But experience tells us that people sometimes fall on stairways even\nthough fully alert and in the best of health. We cannot say with certitude that this was not one of\nthose instances.\n\n\x0c164\n\nTORT LAW\n\nConstruing the evidence in the light most favorable to the prevailing party, as we must, we are\nstill working in the field of probability. And the degree of probability of a connection between an\nalleged cause and a given result needed to sustain an affirmative jury finding cannot be defined with\nmathematical certainty. The line separating fact situations where an inference of causation is\npermissible from those in which it is not must, of necessity, reflect the general practical experience\nof the court called upon to make the demarcation. So considered, it seems reasonable that one\nattempting to descend a stairway so dark that the steps are barely discernible would be likely to fall\nbecause of the darkness. And, the accident having happened, it seems to us more probable that the\ndarkened state of the stairway was the precipitating factor for the accident than otherwise. The\nminimum standards for lighting for stairways set by Minneapolis ordinance also suggest an\nexperience-tested relationship between lack of adequate lighting on stairs and accidents of the type\nwith which we are here concerned. Admittedly, thE case is a close one\xe2\x80\xa6.\nIn Majerus v. Guelsow, 113 N.W.2d 450, negligence on the part of the defendant was proved by\nshowing that the stairway which decedent had apparently been using had treads of irregular width\nand risers of irregular height made more hazardous by the absence of a handrail. The principal\nquestion in the case was whether a causal relationship between these defects and a fall by decedent,\nwho was found dead 30 feet from the bottom of the stairs, could be sustained, there being no direct\nevidence as to what happened. In affirming a jury finding of a causal relationship, the court said:\nFrom the facts and circumstances shown here, a jury could reasonably infer that\nthe defect in part of the stairway was the cause of the accident which culminated\nin decedent\xe2\x80\x99s death. It is true that there are other possible inferences, such as, foul\nplay resulting in someone pushing him down the stairs, his falling while\nintoxicated, an injury received before he returned to the apartment; but none of\nthese creates as reasonable an inference as that reached by the jury. The jury found\nhere, based upon evidence as to the time in which alcohol is metabolized and upon\nthe testimony of those who last saw the decedent, that intoxication was not a cause\nof the death\xe2\x80\xa6.\nThe basic problem in Majerus, as here, was to decide whether an event which could be an\nadequate cause of an accident was in fact the cause of it. We think the probabilities are as great in\nthe one instance as in the other and therefore resolve our doubts in this borderline situation in favor\nof affirmance\xe2\x80\xa6.\n1.\n\nQUESTIONS\nLeffler Revisited: Did the property owner owe Mrs. Muckler a duty? If her guest had\nfallen too, would the same duty apply? What if Mrs. Muckler didn\xe2\x80\x99t live in the apartment\nbuilding and was instead hurrying down the stairs after committing a burglary?\n\n2.\n\nCausal Connection: Imagine you\xe2\x80\x99re the judge in Muckler and the jury asks you how sure\nthey must be that poor lighting caused Mrs. Muckler\xe2\x80\x99s fall. How should you respond?\n\n3.\n\nLawyering Causation: Muckler is an example of when actual cause is disputed (as\nopposed to proximate cause, which we\xe2\x80\x99ll get to soon). A common way to determine\nactual cause is the \xe2\x80\x9cbut-for test\xe2\x80\x9d: But for defendant\xe2\x80\x99s breach, would the plaintiff\xe2\x80\x99s injury\nhave occurred? How does the but-for test apply in this case? How does the plaintiff\xe2\x80\x99s\ntheory of breach frame the causation inquiry?\n\n\x0cCASES & CRITIQUE\n\n165\n\nBUTTS v. WEISZ\nUnited States District Court, W.D. Pennsylvania (2010)\nConti, Judge:\n\n\xc3\xa3\n\n\xe2\x80\xa6[Plaintiff] Levone Butts and her husband, Glen Butts, came to\nknow [defendants] Lloyd Weisz and Georgia Weisz when the two\ncouples lived in California\xe2\x80\xa6. Defendants moved to [Pennsylvania, but\nplaintiff and her husband remained in California.]\xe2\x80\xa6 On August 21,\n2006, plaintiff and her husband were guests at the [Pennsylvania] home\nof Lloyd Weisz and Georgia Weisz\xe2\x80\xa6. Plaintiff and her husband had not\nvisited defendants\xe2\x80\x99 home in Pennsylvania prior to August 21, 2006.\nGlenn Butts was eighty-four years old on that date.\nDefendants\xe2\x80\x99 home is described as a \xe2\x80\x9cranch-style\xe2\x80\x9d house. The back\ndoor of the house opened into a landing area. A person entering through\nthe back door could proceed straight down a stairwell to the basement,\nor could turn left and proceed up a single eight-inch stair into the kitchen. There was no door\nbetween the landing and basement stairwell\xe2\x80\xa6. There was an overhead lighting fixture at the top of\nthe basement steps. The light switch for this lighting fixture was not at the top of the basement\nstairwell, but rather was located outside the landing area above the entryway.\nAfter arriving at defendants\xe2\x80\x99 home from the airport, the couples entered the home through the\nback door; there was ample light in the landing area at the time they entered\xe2\x80\xa6. Defendants gave the\nButts a tour of the home. The tour was brief, however, because plaintiff and her husband were\nhungry and wanted to eat dinner. Defendants took the Butts out to dinner. In exiting the house the\ncouples passed through the back door, and returned through the same door. Georgia Weisz\nintentionally turned off the light in the landing area after returning.\nAfter dinner, plaintiff and Georgia Weisz sat in the living room of the home, while plaintiff\xe2\x80\x99s\nhusband and Lloyd Weisz went into the den area of the home. Plaintiff\xe2\x80\x99s husband entered the living\nroom and stated he was going to \xe2\x80\x9cuse the little boys\xe2\x80\x99 room.\xe2\x80\x9d He walked through the home\xe2\x80\x99s dining\nroom into the kitchen. Plaintiff asserts that the most direct way to the bathroom from her husband\xe2\x80\x99s\nlocation was through the foyer, although the path he took also leads to the bathroom. Georgia Weisz\nsaw plaintiff\xe2\x80\x99s husband enter the kitchen, and was confused why he went that way. Georgia Weisz,\nhowever, did not tell him that the other direction was the direct route. Plaintiff\xe2\x80\x99s husband did not\nask for directions to the bathroom and did not ask that any lights be turned on. Although plaintiff\nbelieved her husband was going in the wrong direction, any concern she had was assuaged by\nGeorgia Weisz\xe2\x80\x99s failure to redirect him.\nDefendants and plaintiff heard a crash from the landing area. They walked to the basement\nstairwell and found plaintiff\xe2\x80\x99s husband unresponsive at the bottom of the steps. No one saw\nplaintiff\xe2\x80\x99s husband fall. Plaintiff attempted to revive her husband, but was unsuccessful. Plaintiff\xe2\x80\x99s\nhusband was taken to Jameson Memorial Hospital\xe2\x80\xa6[and] pronounced dead of blunt head trauma.\nAt all times when plaintiff\xe2\x80\x99s husband passed through the landing area it was amply lit, with the\nexception of when he fell. The lighting was provided either by natural light or by defendants\ntriggering the light switch. The lighting fixture at the top of the basement stairwell was turned off at\nthe time of the accident.\nPlaintiff retained an architect expert witness, Robert T. Stevens, Jr., R.A. [After both sides\nsubmitted competing motions on the admissibility of Stevens\xe2\x80\x99s testimony, the court decided] that\nStevens\xe2\x80\x99 testimony would be limited to offering an opinion regarding a normal person\xe2\x80\x99s gait, the\ndangerousness of a single step, and the possible injuries that could result from that danger:\nTHE COURT: At this stage, the nature of the step, the configuration of the step,\nthe nature of the lighting, how a person would normally walk, those are matters\nthat would be appropriate for Mr. Stevens to opine as to. He is not going to be able\nto opine, however, about the reaching for the light switch, because that\xe2\x80\x99s just too\nspeculative. We have no idea if the decedent reached for the switch or didn\xe2\x80\x99t reach\n\xc3\xa3\n\nJo Zimny, Down The Basement Stairs (CC BY-NC-ND 2.0).\n\n\x0c166\n\nTORT LAW\n\nfor the switch. So that would be a matter of pure speculation. Whether what is left\nin terms of the opinion, whether it\xe2\x80\x99s sufficient for proving causation under these\ncircumstances, I would have to resolve at a motion for summary judgment.\nDEFENDANTS\xe2\x80\x99 COUNSEL: So I understand, Your Honor, at this point your\nruling is that Mr. Stevens would be allowed to testify, would be allowed to testify\nas to the dangerous condition at the top of the stairs, and that it\xe2\x80\x99s possible that Mr.\nButts missed the step, and then, fell to his left?\nTHE COURT: Depending on the walking; how someone would walk on that kind\nof step, and that if someone did fall, they could fall, and going down the steps\nwould be something, too, that could have happened. But the problem you\xe2\x80\x99re going\nto have, quite frankly, is if there\xe2\x80\x99s an equally plausible situation here, I\xe2\x80\x99m not sure\nthat that\xe2\x80\x99s sufficient to get past a motion for summary judgment. But I can\xe2\x80\x99t\nresolve that at this stage\xe2\x80\xa6.\nGlen Butts, a social guest of defendants, was a gratuitous licensee\xe2\x80\xa6. Pennsylvania courts refer\nto the Restatement (Second) of Torts \xc2\xa7 342 in determining the contours of the duty owed by a\nlandowner to a gratuitous licensee. Section 342 makes a possessor of land liable to a licensee for\nphysical harm caused by dangerous conditions known to the possessor that are not made safe and\nare not warned of:\nA possesser of land is subject to liability for physical harm caused to licensees by\na condition on the land if, but only if,\n(a) the possessor knows or has reason to know of the condition and should\nrealize that it involves an unreasonable risk of harm to such licensees and\nshould expect that they will not discover or realize the danger and\n(b) he fails to exercise reasonable care to make the condition safe, or to warn the\nlicensees of the condition and risk involved, and\n(c) the licensees do not know or have reason to know of the condition and the\nrisk involved\xe2\x80\xa6.\n[A] landowner can only be subject to liability for physical harm if the harm is caused by the\nlandowner\xe2\x80\x99s negligence concerning that condition. Pennsylvania courts have adopted the\nRestatement\xe2\x80\x99s \xe2\x80\x98substantial factor\xe2\x80\x99 approach concerning legal causation. Negligent conduct is said to\nbe a legal cause if it is a substantial factor in bringing about the injury. To be a substantial factor, it\nneed not be the sole factor and need not be quantified as considerable or large, so long as it is\nsignificant or recognizable. The fact that some other cause concurs with the negligence of the\ndefendant in producing an injury does not relieve defendant from liability unless he can show that\nsuch other cause would have produced the injury independently of his negligence\xe2\x80\xa6.\nHere, plaintiff failed to adduce sufficient evidence that an alleged breach by defendants caused\nGlen Butts\xe2\x80\x99 death. The evidence presented by plaintiff in responding to defendants\xe2\x80\x99 motion for\nsummary judgment with respect to causation, such as evidence of a dangerous single step, the failure\nto leave on lights, and the failure to warn or alert Glen Butts of potential danger, relates to whether\ndefendants breached a duty owed to Glen Butts. This evidence does not establish a causal link\nbetween the alleged breaches of duty and the accident. Plaintiff\xe2\x80\x99s expert architect witness, Stevens,\noffered an opinion about the cause of the accident, i.e., plaintiff\xe2\x80\x99s husband was reaching for a light\nswitch, but, upon consideration of defendant\xe2\x80\x99s motion to challenge Stevens\xe2\x80\x99 opinions, the court held\nthat such testimony is precluded because it was speculative. For purposes of analyzing the pending\nsummary judgment motions, therefore, the court will limit Stevens\xe2\x80\x99 testimony as set forth on the\nrecord at the June 11, 2009 hearing.\nIn moving for summary judgment, defendants argue that Stevens\xe2\x80\x99 testimony, as limited for trial\npurposes, is insufficient to establish causation. Defendants cite Fedorczyk v. Caribbean Cruise Lines,\nLtd., 82 F.3d 69 (3d Cir. 1996), in which Fedorcrzyk, a passenger on a cruise ship, slipped and fell in\na bath tub, and sued the ship\xe2\x80\x99s operator for negligently causing her injuries. The tub had abrasive\nstrips, but plaintiff did not know whether her feet were on the strips when she slipped. An expert\n\n\x0cCASES & CRITIQUE\n\n167\n\narchitect witness opined that the strips failed to provide a sufficiently large area of non-slip surface\nto permit safe use of the tub\xe2\x80\xa6.\nThe [Fedorcrzyk\xe2\x80\x99s] expert\xe2\x80\x99s testimony was admissible to [the] extent he opined that the less\nadequate the strips the greater the potential to slip, but the Court of Appeals for the Third Circuit\nrecognized that testimony of an increased risk of harm resulting from a party\xe2\x80\x99s negligence does not\nestablish that the party\xe2\x80\x99s negligence caused the harm. The court relied upon a hypothetical for\nfurther explanation:\n\xe2\x80\xa6A company provides a stairway in which some of the stairs are defective and\nsome are in fine condition. A person falls on the steps, but does not know which\nstep she fell on. No evidence is introduced that tends to prove she stepped on the\ndefective step. The injured party simply testified that she walked down the steps\nand fell. We may not reasonably infer that the defective steps probably caused her\ninjury merely because she may have stepped on a defective stair. Without evidence\nestablishing a likelihood that the injured party stepped on the defective stair, a\njury would be left to speculate as to the cause of the injury. Simply put, increased\nrisk of harm due to a defendant\xe2\x80\x99s negligence, standing alone, does not permit an\ninference that an injury, more probably than not, was caused by the negligence.\nBecause the expert\xe2\x80\x99s opinion about the cause of the accident was inadmissible, Fedorczyk did\nnot provide direct or circumstantial evidence that the ship operator\xe2\x80\x99s negligence caused her injuries.\nThe court granted summary judgment in the ship operator\xe2\x80\x99s favor.\nThe evidence in this case is analogous to that presented in Fedorczyk. Stevens\xe2\x80\x99 testimony is\nlimited to establishing that the conditions of defendants\xe2\x80\x99 rear entry foyer area increased the risk of\nharm that an individual would fall down the stairwell. Evidence establishing an increased risk of\nharm, however, is not evidence that those conditions caused Glen Butts\xe2\x80\x99 fall. Stevens could not testify\nthat Glen Butts could have been reaching for the light because there was no evidence that happened.\nIn other words, the expert would have to speculate to render an opinion with respect to causation.\nLike the plaintiff in Fedorczyk, plaintiff\xe2\x80\x99s husband could have fallen for reasons other than\ndefendants\xe2\x80\x99 negligence. Since plaintiff\xe2\x80\x99s evidence is not sufficient to raise a genuine issue of material\nfact with respect to causation, summary judgment must be granted in defendants\xe2\x80\x99 favor\xe2\x80\xa6.\n1.\n\nQUESTIONS\nHidden Dangers: As a social guest, Glen Butts was a licensee in the Weiszes\xe2\x80\x99 home,\nmeaning that they owed him a duty to make the premises safe or warn him of hidden\ndangers about which they should\xe2\x80\x99ve known. The court here focused on whether the\nlanding was a dangerous condition that caused Glen\xe2\x80\x99s fall. But could Levone Butts have\nadvanced a different breach theory based on a failure to warn? How might that have\naltered the causation inquiry under the but-for test? How could the Weiszes have\ncountered that theory?\n\n2.\n\nBelt and Suspenders: On appeal, the Third Circuit upheld the district court\xe2\x80\x99s ruling on\ncausation, explaining that \xe2\x80\x9cthe inference that Mr. Butts fell because there were dim\nlighting conditions and an allegedly dangerous single step was not an appropriate\ninference that the jury could draw or should have been given the opportunity to draw.\xe2\x80\x9d\nBut the appellate court went one step further, concluding that there would also have\nbeen no breach based on the single step because premises liability attaches only if the\npossessor of land \xe2\x80\x9cshould expect that the licensees will not discover or realize the danger\xe2\x80\x9d\nand \xe2\x80\x9cthe licensees do not know or have reason to know of the condition and the risk\ninvolved.\xe2\x80\x9d What circumstances could justify the Third Circuit\xe2\x80\x99s conclusion as to breach?\n\n3.\n\nStairway to Heaven: Assume that there was compelling evidence that Glen fell while he\nwas on the stairwell. Imagine also that there were 100 steps, 51 of which were dangerous\nand 49 of which were safe. Would combining these facts be sufficient to establish\ncausation by a preponderance of the evidence?\n\n\x0c168\n\nTORT LAW\n\nGREEK LIFE PROBLEM\nth\n\nViraj got a brand-new, blacked-out Land Rover Defender for his 18 birthday. On his inaugural\ndrive to the Sigma Alpha Delta frat party, he took the obligatory video of his steering wheel and the\nall-digital dashboard to post on his Instagram story. While swiping through filters before posting\nthe video, he didn\xe2\x80\x99t realize that his foot was laying on the gas quite heavily. He was going 75 mph in\na 45. As his thumb hovered over the \xe2\x80\x9cadd to story\xe2\x80\x9d button, he hit Kristie\xe2\x80\x99s car.\nKristie had just turned left out of the Wingster parking lot in her Jeep Wrangler, heading back\ntoward the Omega Mu Gamma sorority house. She was too busy eating her lemon pepper wings to\nlook before pulling out. Unfortunately, when her car collided with Viraj\xe2\x80\x99s, the vehicles interlocked\nand slid onto the sidewalk, careening into Berry and breaking her leg.\nBerry sues Viraj and Kristie, alleging that they both drove their cars negligently.\n(a)\n(b)\n(c)\n(d)\n(e)\n\nWhich driver caused Berry\xe2\x80\x99s injury? Viraj or Kristie? Or did both cause Berry\xe2\x80\x99s injury?\nShould Viraj and Kristie be held jointly liable for Berry\xe2\x80\x99s injury?\nWhat if the two cars didn\xe2\x80\x99t interlock? Same result?\nIf only Viraj had been driving carelessly, could Kristie still be liable?\nWas Viraj or Kristie more at fault for the accident? Does it matter?\nWILDFIRE PROBLEM\n\nKirby owns 50 acres in South Georgia, and a railroad owned by Gator Railway runs along the\nwestern edge of her property. Due to a lack of proper maintenance, a passing train gave off an\ninordinate amount of sparks as it passed Kirby\xe2\x80\x99s property one day in August. The sparks started a\nfire. Meanwhile, a few miles to the southwest, a natural forest fire was raging and heading inexorably\ntoward Kirby\xe2\x80\x99s property. Both fires grew, and the forest fire eventually reached the railroad fire.\nAfter the two fires combined into one, flames burned Kirby\xe2\x80\x99s land and destroyed her house.\n(a) Was the railroad fire an actual cause of the damage to Kirby\xe2\x80\x99s property?\n(b) Does the but-for test lead to an equitable or sensible outcome here?\n(c) If the forest fire had burned all of Kirby\xe2\x80\x99s property before the railroad fire got there,\ncould Gator Railway be liable for negligence?\n(d) Could Gator Railway be liable if the railroad fire burned the entirety of Kirby\xe2\x80\x99s property\nand then the forest fire also consumed the property ten minutes later?\n(e) Keeping all other facts the same, imagine that, instead of a natural forest fire, a nearby\ncamper caused the second fire after failing to extinguish his campfire despite wildfire\nwarnings at the campsite. In determining Gator Railway\xe2\x80\x99s potential liability, would this\nchange the analysis or result? And could the camper be liable for negligence?\nSUMMERS v. TICE\nSupreme Court of California (1948)\nCarter, Justice:\n\n\xc3\xa3\n\nEach of the two defendants appeals from a judgment against them in an\naction for personal injuries\xe2\x80\xa6. Plaintiff\xe2\x80\x99s action was against both defendants\nfor an injury to his right eye and face as the result of being struck by bird\nshot discharged from a shotgun. The case was tried by the court without a\njury and the court found that on November 20, 1945, plaintiff and the two\ndefendants were hunting quail on the open range. Each of the defendants\nwas armed with a 12 gauge shotgun loaded with shells containing 7 \xc2\xbd size\nshot. Prior to going hunting plaintiff discussed the hunting procedure with\ndefendants, indicating that they were to exercise care when shooting and to\n\xc3\xa3\n\nDon Harrison, NW Mancelona Antrim MI 1956 (CC BY-NC-ND 2.0).\n\n\x0cCASES & CRITIQUE\n\n169\n\n\xe2\x80\x9ckeep in line.\xe2\x80\x9d In the course of hunting plaintiff proceeded up a hill, thus placing the hunters at the\npoints of a triangle. The view of defendants with reference to plaintiff was unobstructed and they\nknew his location. Defendant Tice flushed a quail which rose in flight to a 10-foot elevation and flew\nbetween plaintiff and defendants. Both defendants shot at the quail, shooting in plaintiff\xe2\x80\x99s direction.\nAt that time defendants were 75 yards from plaintiff. One shot struck plaintiff in his eye and another\nin his upper lip. Finally it was found by the court that as the direct result of the shooting by\ndefendants the shots struck plaintiff as above mentioned and that defendants were negligent in so\nshooting and plaintiff was not contributorily negligent\xe2\x80\xa6.\nThere is evidence that both defendants, at about the same time or one immediately after the\nother, shot at a quail and in so doing shot toward plaintiff who was uphill from them, and that they\nknew his location. That is sufficient from which the trial court could conclude that they acted with\nrespect to plaintiff other than as persons of ordinary prudence\xe2\x80\xa6.\nDefendant Tice states in his opening brief, \xe2\x80\x9cwe have decided not to argue the insufficiency of\nnegligence on the part of defendant Tice.\xe2\x80\x9d It is true he states in his answer to plaintiff\xe2\x80\x99s petition for\na hearing in this court that he did not concede this point but he does not argue it. Nothing more\nneed be said on the subject.\nDefendant Simonson urges that plaintiff was guilty of contributory negligence and assumed the\nrisk as a matter of law. He cites no authority for the proposition that by going on a hunting party\nthe various hunters assume the risk of negligence on the part of their companions. Such a tenet is\nnot reasonable. It is true that plaintiff suggested that they all \xe2\x80\x9cstay in line,\xe2\x80\x9d presumably abreast, while\nhunting, and he went uphill at somewhat of a right angle to the hunting line, but he also cautioned\nthat they use care, and defendants knew plaintiff\xe2\x80\x99s position. We hold, therefore, that the trial court\nwas justified in finding that he did not assume the risk or act other than as a person of ordinary\nprudence under the circumstances\xe2\x80\xa6.\nThe problem presented in this case is whether the judgment against both defendants may stand.\nIt is argued by defendants that they are not joint tortfeasors, and thus jointly and severally liable, as\nthey were not acting in concert, and that there is not sufficient evidence to show which defendant\nwas guilty of the negligence which caused the injuries\xe2\x80\x94the shooting by Tice or that by Simonson.\nTice argues that there is evidence to show that the shot which struck plaintiff came from Simonson\xe2\x80\x99s\ngun because of admissions allegedly made by him to third persons and no evidence that they came\nfrom his gun. Further in connection with the latter contention, the court failed to find on plaintiff\xe2\x80\x99s\nallegation in his complaint that he did not know which one was at fault\xe2\x80\x94did not find which\ndefendant was guilty of the negligence which caused the injuries to plaintiff.\nConsidering the last argument first, we believe it is clear that the court sufficiently found on the\nissue that defendants were jointly liable and that thus the negligence of both was the cause of the\ninjury or to that legal effect. It found that both defendants were negligent and \xe2\x80\x9cThat as a direct and\nproximate result of the shots fired by defendants, and each of them, a birdshot pellet was caused to\nand did lodge in plaintiff\xe2\x80\x99s right eye and that another birdshot pellet was caused to and did lodge in\nplaintiff\xe2\x80\x99s upper lip.\xe2\x80\x9d In so doing the court evidently did not give credence to the admissions of\nSimonson to third persons that he fired the shots, which it was justified in doing. It thus determined\nthat the negligence of both defendants was the legal cause of the injury\xe2\x80\x94or that both were\nresponsible. Implicit in such finding is the assumption that the court was unable to ascertain whether\nthe shots were from the gun of one defendant or the other or one shot from each of them. The one\nshot that entered plaintiff\xe2\x80\x99s eye was the major factor in assessing damages and that shot could not\nhave come from the gun of both defendants. It was from one or the other only.\nIt has been held that where a group of persons are on a hunting party, or otherwise engaged in\nthe use of firearms, and two of them are negligent in firing in the direction of a third person who is\ninjured thereby, both of those so firing are liable for the injury suffered by the third person, although\nthe negligence of only one of them could have caused the injury. The same rule has been applied in\ncriminal cases, and both drivers have been held liable for the negligence of one where they engaged\nin a racing contest causing an injury to a third person. These cases speak of the action of defendants\nas being in concert as the ground of decision, yet it would seem they are straining that concept and\nthe more reasonable basis appears in Oliver v. Miles, 110 So. 666 (Miss. 1927). There two persons\nwere hunting together. Both shot at some partridges and in so doing shot across the highway\n\n\x0c170\n\nTORT LAW\n\ninjuring plaintiff who was travelling on it. The court stated they were acting in concert and thus both\nwere liable. The court then stated: \xe2\x80\x9cWe think that each is liable for the resulting injury to the boy,\nalthough no one can say definitely who actually shot him. To hold otherwise would be to exonerate\nboth from liability, although each was negligent, and the injury resulted from such\nnegligence.\xe2\x80\x9d\xe2\x80\xa6 Dean Wigmore has this to say:\nWhen two or more persons by their acts are possibly the sole cause of a harm, or\nwhen two or more acts of the same person are possibly the sole cause, and the\nplaintiff has introduced evidence that the one of the two persons, or the one of the\nsame person\xe2\x80\x99s two acts, is culpable, then the defendant has the burden of proving\nthat the other person, or his other act, was the sole cause of the harm. (b) The real\nreason for the rule that each joint tortfeasor is responsible for the whole damage\nis the practical unfairness of denying the injured person redress simply because\nhe cannot prove how much damage each did, when it is certain that between them\nthey did all; let them be the ones to apportion it among themselves. Since, then,\nthe difficulty of proof is the reason, the rule should apply whenever the harm has\nplural causes, and not merely when they acted in conscious concert.\nWhen we consider the relative position of the parties and the results that would flow if plaintiff\nwas required to pin the injury on one of the defendants only, a requirement that the burden of proof\non that subject be shifted to defendants becomes manifest. They are both wrongdoers\xe2\x80\x94both\nnegligent toward plaintiff. They brought about a situation where the negligence of one of them\ninjured the plaintiff, hence it should rest with them each to absolve himself if he can. The injured\nparty has been placed by defendants in the unfair position of pointing to which defendant caused\nthe harm. If one can escape the other may also and plaintiff is remediless. Ordinarily defendants are\nin a far better position to offer evidence to determine which one caused the injury. This reasoning\nhas recently found favor in this court. In a quite analogous situation this court held that a patient\ninjured while unconscious on an operating table in a hospital could hold all or any of the persons\nwho had any connection with the operation even though he could not select the particular acts by\nthe particular person which led to his disability. Ybarra v. Spangard, 154 P.2d 687 (Cal. 1944). There\nthe court was considering whether the patient could avail himself of res ipsa loquitur, rather than\nwhere the burden of proof lay, yet the effect of the decision is that plaintiff has made out a case when\nhe has produced evidence which gives rise to an inference of negligence which was the proximate\ncause of the injury. It is up to defendants to explain the cause of the injury. It was there said: \xe2\x80\x9cIf the\ndoctrine is to continue to serve a useful purpose, we should not forget that the particular force and\njustice of the rule, regarded as a presumption throwing upon the party charged the duty of producing\nevidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or\ninnocent, is practically accessible to him but inaccessible to the injured person.\xe2\x80\x9d Similarly in the\ninstant case plaintiff is not able to establish which of defendants caused his injury\xe2\x80\xa6.\nIn addition to that, however, it should be pointed out that the same reasons of policy and justice\nshift the burden to each of defendants to absolve himself if he can\xe2\x80\x94relieving the wronged person of\nthe duty of apportioning the injury to a particular defendant, apply here where we are concerned\nwith whether plaintiff is required to supply evidence for the apportionment of damages. If\ndefendants are independent tortfeasors and thus each liable for the damage caused by him alone,\nand, at least, where the matter of apportionment is incapable of proof, the innocent wronged party\nshould not be deprived of his right to redress. The wrongdoers should be left to work out between\nthemselves any apportionment\xe2\x80\xa6.\nIt is urged that plaintiff now has changed the theory of his case in claiming a concert of action;\nthat he did not plead or prove such concert. From what has been said it is clear that there has been\nno change in theory. The joint liability, as well as the lack of knowledge as to which defendant was\nliable, was pleaded and the proof developed the case under either theory. We have seen that for the\nreasons of policy discussed herein, the case is based upon the legal proposition that, under the\n\n\x0cCASES & CRITIQUE\n\n171\n\ncircumstances here presented, each defendant is liable for the whole damage whether they are\ndeemed to be acting in concert or independently. The judgment is affirmed.\n\xc3\xa3\n\n1.\n\nQUESTIONS\nShots Fired! The court tells us that \xe2\x80\x9c[o]ne shot struck plaintiff in his eye and another in\nhis upper lip.\xe2\x80\x9d Do we know whether these two injuries were from the same gun or\ndifferent guns? Would the answer affect the liability puzzle that Summers presents?\n\n2.\n\nShifting Burdens: The Summers court\xe2\x80\x99s theory, which comes to be known as alternative\ncausation or alternative liability, allows multiple defendants to be held jointly and\nseverally liable when: (1) each defendant acted in a nearly identically careless manner\ntoward the plaintiff; (2) one of the defendants caused the plaintiff\xe2\x80\x99s injury; (3) the\nplaintiff isn\xe2\x80\x99t at fault; and (4) the plaintiff\xe2\x80\x99s failure of proof isn\xe2\x80\x99t due to their lack of\ndiligence. Does this remind you of another doctrine we\xe2\x80\x99ve studied that also touches upon\nissues of proof? What\xe2\x80\x99s the difference here? What are the similarities?\n\n3.\n\nHunting Party: How does the Summers rule effectively modify a plaintiff\xe2\x80\x99s usual burden\nof proof? Would the rule still have force if there were three shooters? Or five? Or ten?\n\n\xc3\xa3\n\nWela Quan, Summers v. Tice, NY Bar Picture Book (CC BY-NC-ND 4.0).\n\n\x0c172\n\nTORT LAW\n\nThe following case discusses miscarriages.\nSINDELL v. ABBOTT LABORATORIES\nSupreme Court of California (1980)\nMosk, Justice:\n\n\xc3\xa3\n\nThis case involves a complex problem both timely and\nsignificant: may a plaintiff, injured as the result of a drug\nadministered to her mother during pregnancy, who\nknows the type of drug involved but cannot identify the\nmanufacturer of the precise product, hold liable for her\ninjuries a maker of a drug produced from an identical\nformula?\nPlaintiff Judith Sindell brought an action against\neleven drug companies and Does 1 through 100, on behalf\nof herself and other women similarly situated\xe2\x80\xa6. Between\n1941 and 1971, defendants were engaged in the business\nof manufacturing, promoting, and marketing diethylstilbesterol (DES), a drug which is a synthetic\ncompound of the female hormone estrogen. The drug was administered to plaintiff\xe2\x80\x99s mother and\nthe mothers of the class she represents,1 for the purpose of preventing miscarriage. In 1947, the Food\nand Drug Administration authorized the marketing of DES as a miscarriage preventative, but only\non an experimental basis, with a requirement that the drug contain a warning label to that effect.\nDES may cause cancerous vaginal and cervical growths in the daughters exposed to it before\nbirth, because their mothers took the drug during pregnancy. The form of cancer from which these\ndaughters suffer is known as adenocarcinoma, and it manifests itself after a minimum latent period\nof 10 or 12 years. It is a fast-spreading and deadly disease, and radical surgery is required to prevent\nit from spreading. DES also causes adenosis, precancerous vaginal and cervical growths which may\nspread to other areas of the body. The treatment for adenosis is cauterization, surgery, or\ncryosurgery. Women who suffer from this condition must be monitored by biopsy or colposcopic\nexamination twice a year, a painful and expensive procedure. Thousands of women whose mothers\nreceived DES during pregnancy are unaware of the effects of the drug.\nIn 1971, the Food and Drug Administration ordered defendants to cease marketing and\npromoting DES for the purpose of preventing miscarriages, and to warn physicians and the public\nthat the drug should not be used by pregnant women because of the danger to their unborn children.\nDuring the period defendants marketed DES, they knew or should have known that it was a\ncarcinogenic substance, that there was a grave danger after varying periods of latency it would cause\ncancerous and precancerous growths in the daughters of the mothers who took it, and that it was\nineffective to prevent miscarriage. Nevertheless, defendants continued to advertise and market the\ndrug as a miscarriage preventative. They failed to test DES for efficacy and safety; the tests performed\nby others, upon which they relied, indicated that it was not safe or effective. In violation of the\nauthorization of the Food and Drug Administration, defendants marketed DES on an unlimited\nbasis rather than as an experimental drug, and they failed to warn of its potential danger.\nBecause of defendants\xe2\x80\x99 advertised assurances that DES was safe and effective to prevent\nmiscarriage, plaintiff was exposed to the drug prior to her birth. She became aware of the danger\nfrom such exposure within one year of the time she filed her complaint. As a result of the DES\ningested by her mother, plaintiff developed a malignant bladder tumor which was removed by\nsurgery. She suffers from adenosis and must constantly be monitored by biopsy or colposcopy to\ninsure early warning of further malignancy.\n\n\xc3\xa3\n\nDES Daughter, desPLEX (CC BY-SA 2.0).\nThe plaintiff class alleged consists of \xe2\x80\x9cgirls and women who are residents of California and who have been exposed to\nDES before birth and who may or may not know that fact or the dangers\xe2\x80\x9d to which they were exposed. Defendants are also\nsued as representatives of a class of drug manufacturers which sold DES after 1941.\n1\n\n\x0cCASES & CRITIQUE\n\n173\n\nThe first cause of action alleges that defendants were jointly and individually negligent in that\nthey manufactured, marketed and promoted DES as a safe and efficacious drug to prevent\nmiscarriage, without adequate testing or warning, and without monitoring or reporting its effects.\nA separate cause of action alleges that defendants are jointly liable regardless of which particular\nbrand of DES was ingested by plaintiff\xe2\x80\x99s mother because defendants collaborated in marketing,\npromoting and testing the drug, relied upon each other\xe2\x80\x99s tests, and adhered to an industry-wide safety\nstandard. DES was produced from a common and mutually agreed upon formula as a fungible drug\ninterchangeable with other brands of the same product; defendants knew or should have known that\nit was customary for doctors to prescribe the drug by its generic rather than its brand name and that\npharmacists filled prescriptions from whatever brand of the drug happened to be in stock\xe2\x80\xa6.\nEach cause of action alleges that defendants are jointly liable because they acted in concert, on\nthe basis of express and implied agreements, and in reliance upon and ratification and exploitation\nof each other\xe2\x80\x99s testing and marketing methods.\nPlaintiff seeks compensatory damages of $1 million and punitive damages of $10 million for\nherself. For the members of her class, she prays for equitable relief in the form of an order that\ndefendants warn physicians and others of the danger of DES and the necessity of performing certain\ntests to determine the presence of disease caused by the drug, and that they establish free clinics in\nCalifornia to perform such tests.\nDefendants demurred to the complaint. While the complaint did not expressly allege that\nplaintiff could not identify the manufacturer of the precise drug ingested by her mother, she stated\nin her points and authorities in opposition to the demurrers filed by some of the defendants that she\nwas unable to make the identification, and the trial court sustained the demurrers of these\ndefendants without leave to amend on the ground that plaintiff did not and stated she could not\nidentify which defendant had manufactured the drug responsible for her injuries\xe2\x80\xa6. This appeal\ninvolves only five of ten defendants named in the complaint.2\xe2\x80\xa6\nThis case is but one of a number filed throughout the country seeking to hold drug\nmanufacturers liable for injuries allegedly resulting from DES prescribed to the plaintiffs\xe2\x80\x99 mothers\nsince 1947. According to a note in the Fordham Law Review, estimates of the number of women who\ntook the drug during pregnancy range from 1 \xc2\xbd million to 3 million. Hundreds, perhaps thousands,\nof the daughters of these women suffer from adenocarcinoma, and the incidence of vaginal adenosis\namong them is 30 to 90 percent. Comment, DES and a Proposed Theory of Enterprise Liability, 46\nFordham L. Rev. 963 (1978). Most of the cases are still pending. With two exceptions, those that\nhave been decided resulted in judgments in favor of the drug company defendants because of the\nfailure of the plaintiffs to identify the manufacturer of the DES prescribed to their mothers. The\nsame result was reached in a recent California case. The present action is another attempt to\novercome this obstacle to recovery.\nWe begin with the proposition that, as a general rule, the imposition of liability depends upon a\nshowing by the plaintiff that his or her injuries were caused by the act of the defendant or by an\ninstrumentality under the defendant\xe2\x80\x99s control\xe2\x80\xa6. There are, however, exceptions to this rule.\nPlaintiff\xe2\x80\x99s complaint suggests several bases upon which defendants may be held liable for her injuries\neven though she cannot demonstrate the name of the manufacturer which produced the DES\nactually taken by her mother. The first of these theories, classically illustrated by Summers v. Tice,\n199 P.2d 1 (1948), places the burden of proof of causation upon tortious defendants in certain\ncircumstances. The second basis of liability emerging from the complaint is that defendants acted in\nconcert to cause injury to plaintiff. There is a third and novel approach to the problem, sometimes\ncalled the theory of \xe2\x80\x9centerprise liability,\xe2\x80\x9d but which we prefer to designate by the more accurate term\nof \xe2\x80\x9cindustry-wide\xe2\x80\x9d liability, which might obviate the necessity for identifying the manufacturer of\nthe injury-causing drug. We shall conclude that these doctrines, as previously interpreted, may not\nbe applied to hold defendants liable under the allegations of this complaint. However, we shall\n\n2\n\nAbbott Laboratories, Eli Lilly and Company, E.R. Squibb and Sons, the Upjohn Company, and Rexall Drug Company\nare respondents. The action was dismissed or the appeal abandoned on various grounds as to other defendants named in the\ncomplaint; e.g., one defendant demonstrated it had not manufactured DES during the period plaintiff\xe2\x80\x99s mother took the drug.\n\n\x0c174\n\nTORT LAW\n\npropose and adopt a fourth basis for permitting the action to be tried, grounded upon an extension\nof the Summers doctrine.\nI\nPlaintiff places primary reliance upon cases which hold that if a party cannot identify which of\ntwo or more defendants caused an injury, the burden of proof may shift to the defendants to show\nthat they were not responsible for the harm. This principle is sometimes referred to as the\n\xe2\x80\x9calternative liability\xe2\x80\x9d theory.\nThe celebrated case of Summers v. Tice, a unanimous opinion of this court, best exemplifies the\nrule. In Summers, the plaintiff was injured when two hunters negligently shot in his direction. It\ncould not be determined which of them had fired the shot that actually caused the injury to the\nplaintiff\xe2\x80\x99s eye, but both defendants were nevertheless held jointly and severally liable for the whole\nof the damages. We reasoned that both were wrongdoers, both were negligent toward the plaintiff,\nand that it would be unfair to require plaintiff to isolate the defendant responsible, because if the\none pointed out were to escape liability, the other might also, and the plaintiff-victim would be shorn\nof any remedy. In these circumstances, we held, the burden of proof shifted to the defendants, \xe2\x80\x9ceach\nto absolve himself if he can.\xe2\x80\x9d We stated that under these or similar circumstances a defendant is\nordinarily in a \xe2\x80\x9cfar better position\xe2\x80\x9d to offer evidence to determine whether he or another defendant\ncaused the injury.\nIn Summers, we relied upon Ybarra v. Spangard, 154 P.2d 687 (1944). There, the plaintiff was\ninjured while he was unconscious during the course of surgery. He sought damages against several\ndoctors and a nurse who attended him while he was unconscious. We held that it would be\nunreasonable to require him to identify the particular defendant who had performed the alleged\nnegligent act because he was unconscious at the time of the injury and the defendants exercised control\nover the instrumentalities which caused the harm. Therefore, under the doctrine of res ipsa loquitur,\nan inference of negligence arose that defendants were required to meet by explaining their conduct\xe2\x80\xa6.\nDefendants assert that these principles are inapplicable here. First, they insist that a predicate to\nshifting the burden of proof under Summers-Ybarra is that the defendants must have greater access\nto information regarding the cause of the injuries than the plaintiff, whereas in the present case the\nreverse appears. [We disagree.]\xe2\x80\xa6\nBecause many years elapsed between the time the drug was taken and the manifestation of\nplaintiff\xe2\x80\x99s injuries she, and many other daughters of mothers who took DES, are unable to make\nsuch identification. Certainly there can be no implication that plaintiff is at fault in failing to do so\xe2\x80\x94\nthe event occurred while plaintiff was in utero, a generation ago.\nOn the other hand, it cannot be said with assurance that defendants have the means to make the\nidentification\xe2\x80\xa6. Nor\xe2\x80\xa6[is] the absence of evidence on this subject\xe2\x80\xa6due to the fault of\ndefendants\xe2\x80\xa6. [T]he difficulty or impossibility of identification results primarily from the passage\nof time rather than from their allegedly negligent acts of failing to provide adequate warnings\xe2\x80\xa6.\nIt is important to observe, however, that while defendants do not have means superior to plaintiff\nto identify the maker of the precise drug taken by her mother, they may in some instances be able to\nprove that they did not manufacture the injury-causing substance. In the present case, for example,\none of the original defendants was dismissed from the action upon proof that it did not manufacture\nDES until after plaintiff was born.\nThus we conclude the fact defendants do not have greater access to information that might\nestablish the identity of the manufacturer of the DES which injured plaintiff does not per se prevent\napplication of the Summers rule.\nNevertheless, \xe2\x80\xa6[t]here is an important difference between the situation involved\nin Summers and the present case. There, all the parties who were or could have been responsible for\nthe harm to the plaintiff were joined as defendants. Here, by contrast, there are approximately 200\ndrug companies which made DES, any of which might have manufactured the injury-producing\ndrug. Defendants maintain that, while in Summers there was a 50 percent chance that one of the two\ndefendants was responsible for the plaintiff\xe2\x80\x99s injuries, here since any one of 200 companies which\nmanufactured DES might have made the product that harmed plaintiff, there is no rational basis\n\n\x0cCASES & CRITIQUE\n\n175\n\nupon which to infer that any defendant in this action caused plaintiff\xe2\x80\x99s injuries, nor even a\nreasonable possibility that they were responsible.\nThese arguments are persuasive if we measure the chance that any one of the defendants supplied\nthe injury-causing drug by the number of possible tortfeasors. In such a context, the possibility that\nany of the five defendants supplied the DES to plaintiff\xe2\x80\x99s mother is so remote that it would be unfair\nto require each defendant to exonerate itself. There may be a substantial likelihood that none of the\nfive defendants joined in the action made the DES which caused the injury, and that the offending\nproducer not named would escape liability altogether. While we propose, infra, an adaptation of the\nrule in Summers which will substantially overcome these difficulties, defendants appear to be correct\nthat the rule, as previously applied, cannot relieve plaintiff of the burden of proving the identity of\nthe manufacturer which made the drug causing her injuries.\nII\nThe second principle upon which plaintiff relies is the so-called \xe2\x80\x9cconcert of action\xe2\x80\x9d theory\xe2\x80\xa6.\nThe elements of this doctrine are prescribed in section 876 of the Restatement Second of Torts\xe2\x80\xa6[:]\nFor harm resulting to a third person from the tortious conduct of another, one is\nsubject to liability if he (a) does a tortious act in concert with the other or pursuant\nto a common design with him, or (b) knows that the other\xe2\x80\x99s conduct constitutes a\nbreach of duty and gives substantial assistance or encouragement to the other so\nto conduct himself, or (c) gives substantial assistance to the other in\naccomplishing a tortious result and his own conduct, separately considered,\nconstitutes a breach of duty to the third person.\nWith respect to this doctrine, Prosser, Law of Torts \xc2\xa7 46 (1971), states that \xe2\x80\x9cthose who, in\npursuance of a common plan or design to commit a tortious act, actively take part in it, or further it\nby cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt\nhis acts done for their benefit, are equally liable with him. Express agreement is not necessary, and\nall that is required is that there be a tacit understanding.\xe2\x80\x9d\nPlaintiff\xe2\x80\xa6alleges that defendants\xe2\x80\x99 wrongful conduct \xe2\x80\x9cis the result of planned and concerted\naction, express and implied agreements, collaboration in, reliance upon, acquiescence in and\nratification, exploitation and adoption of each other\xe2\x80\x99s testing, marketing methods, lack of warnings\nand other acts or omissions\xe2\x80\x9d and that \xe2\x80\x9cacting individually and in concert, defendants promoted,\napproved, authorized, acquiesced in, and reaped profits from sales\xe2\x80\x9d of DES. These allegations,\nplaintiff claims, state a \xe2\x80\x9ctacit understanding\xe2\x80\x9d among defendants to commit a tortious act against her.\nIn our view, this litany of charges is insufficient to allege a cause of action under the rules stated\nabove. The gravamen of the charge of concert is that defendants failed to adequately test the drug or\nto give sufficient warning of its dangers and that they relied upon the tests performed by one another\nand took advantage of each others\xe2\x80\x99 promotional and marketing techniques. These allegations do not\namount to a charge that there was a tacit understanding or a common plan among defendants to fail\nto conduct adequate tests or give sufficient warnings, and that they substantially aided and\nencouraged one another in these omissions\xe2\x80\xa6.\nIII\nA third theory upon which plaintiff relies is the concept of industry-wide liability, or according\nto the terminology of the parties, \xe2\x80\x9centerprise liability.\xe2\x80\x9d This theory was suggested in Hall v. E.I. Du\nPont de Nemours & Co., Inc., 345 F. Supp. 353 (E.D.N.Y. 1972). In that case, plaintiffs were 13\nchildren injured by the explosion of blasting caps in 12 separate incidents which occurred in 10\ndifferent states between 1955 and 1959. The defendants were six blasting cap manufacturers,\ncomprising virtually the entire blasting cap industry in the United States, and their trade association.\nThere were, however, a number of Canadian blasting cap manufacturers which could have supplied\nthe caps. The gravamen of the complaint was that the practice of the industry of omitting a warning\non individual blasting caps and of failing to take other safety measures created an unreasonable risk\nof harm, resulting in the plaintiffs\xe2\x80\x99 injuries. The complaint did not identify a particular manufacturer\nof a cap which caused a particular injury\xe2\x80\xa6.\n\n\x0c176\n\nTORT LAW\n\nWe decline to apply this theory in the present case. At least 200 manufacturers produced\nDES; Hall, which involved 6 manufacturers representing the entire blasting cap industry in the\nUnited States, cautioned against application of the doctrine espoused therein to a large number of\nproducers. Moreover, in Hall, the conclusion that the defendants jointly controlled the risk was\nbased upon allegations that they had delegated some functions relating to safety to a trade\nassociation. There are no such allegations here, and we have concluded above that plaintiff has failed\nto allege liability on a concert of action theory.\nEqually important, the drug industry is closely regulated by the Food and Drug Administration,\nwhich actively controls the testing and manufacture of drugs and the method by which they are\nmarketed, including the contents of warning labels. To a considerable degree, therefore, the\nstandards followed by drug manufacturers are suggested or compelled by the government.\nAdherence to those standards cannot, of course, absolve a manufacturer of liability to which it would\notherwise be subject. But since the government plays such a pervasive role in formulating the criteria\nfor the testing and marketing of drugs, it would be unfair to impose upon a manufacturer liability\nfor injuries resulting from the use of a drug which it did not supply simply because it followed the\nstandards of the industry.\nIV\nIf we were confined to the theories of Summers and Hall, we would be constrained to hold that\nthe judgment must be sustained. Should we require that plaintiff identify the manufacturer which\nsupplied the DES used by her mother or that all DES manufacturers be joined in the action, she\nwould effectively be precluded from any recovery. As defendants candidly admit, there is little\nlikelihood that all the manufacturers who made DES at the time in question are still in business or\nthat they are subject to the jurisdiction of the California courts. There are, however, forceful\narguments in favor of holding that plaintiff has a cause of action.\nIn our contemporary complex industrialized society, advances in science and technology create\nfungible goods which may harm consumers and which cannot be traced to any specific producer.\nThe response of the courts can be either to adhere rigidly to prior doctrine, denying recovery to\nthose injured by such products, or to fashion remedies to meet these changing needs. Just as Justice\nTraynor in his landmark concurring opinion in Escola v. Coca Cola Bottling Co., 150 P.2d\n436 (1944), recognized that in an era of mass production and complex marketing methods the\ntraditional standard of negligence was insufficient to govern the obligations of manufacturer to\nconsumer, so should we acknowledge that some adaptation of the rules of causation and liability\nmay be appropriate in these recurring circumstances\xe2\x80\xa6.\nThe most persuasive reason for finding plaintiff states a cause of action is that advanced\nin Summers: as between an innocent plaintiff and negligent defendants, the latter should bear the\ncost of the injury. Here, as in Summers, plaintiff is not at fault in failing to provide evidence of\ncausation, and although the absence of such evidence is not attributable to the defendants either,\ntheir conduct in marketing a drug the effects of which are delayed for many years played a significant\nrole in creating the unavailability of proof.\nFrom a broader policy standpoint, defendants are better able to bear the cost of injury resulting\nfrom the manufacture of a defective product. As was said by Justice Traynor in Escola, \xe2\x80\x9cthe cost of\nan injury and the loss of time or health may be an overwhelming misfortune to the person injured,\nand a needless one, for the risk of injury can be insured by the manufacturer and distributed among\nthe public as a cost of doing business.\xe2\x80\x9d The manufacturer is in the best position to discover and\nguard against defects in its products and to warn of harmful effects; thus, holding it liable for defects\nand failure to warn of harmful effects will provide an incentive to product safety. These\nconsiderations are particularly significant where medication is involved, for the consumer is\nvirtually helpless to protect himself from serious, sometimes permanent, sometimes fatal, injuries\ncaused by deleterious drugs.\nWhere, as here, all defendants produced a drug from an identical formula and the manufacturer of\nthe DES which caused plaintiff\xe2\x80\x99s injuries cannot be identified through no fault of plaintiff, a\nmodification of the rule of Summers is warranted. As we have seen, an undiluted Summers rationale is\ninappropriate to shift the burden of proof of causation to defendants because if we measure the chance\n\n\x0cCASES & CRITIQUE\n\n177\n\nthat any particular manufacturer supplied the injury-causing product by the number of producers of\nDES, there is a possibility that none of the five defendants in this case produced the offending substance\nand that the responsible manufacturer, not named in the action, will escape liability.\nBut we approach the issue of causation from a different perspective: we hold it to be reasonable in\nthe present context to measure the likelihood that any of the defendants supplied the product which\nallegedly injured plaintiff by the percentage which the DES sold by each of them for the purpose of\npreventing miscarriage bears to the entire production of the drug sold by all for that purpose. Plaintiff\nasserts in her briefs that Eli Lilly and Company and five or six other companies produced 90 percent\nof the DES marketed. If at trial this is established to be the fact, then there is a corresponding\nlikelihood that this comparative handful of producers manufactured the DES which caused plaintiff\xe2\x80\x99s\ninjuries, and only a 10 percent likelihood that the offending producer would escape liability.\nIf plaintiff joins in the action the manufacturers of a substantial share of the DES which her\nmother might have taken, the injustice of shifting the burden of proof to defendants to demonstrate\nthat they could not have made the substance which injured plaintiff is significantly diminished.\nWhile 75 to 80 percent of the market is suggested as the requirement by the Fordham Comment, we\nhold only that a substantial percentage is required.\nThe presence in the action of a substantial share of the appropriate market also provides a ready\nmeans to apportion damages among the defendants. Each defendant will be held liable for the\nproportion of the judgment represented by its share of that market unless it demonstrates that it\ncould not have made the product which caused plaintiff\xe2\x80\x99s injuries. In the present case, as we have\nseen, one DES manufacturer was dismissed from the action upon filing a declaration that it had not\nmanufactured DES until after plaintiff was born. Once plaintiff has met her burden of joining the\nrequired defendants, they in turn may cross-complain against other DES manufacturers, not joined\nin the action, which they can allege might have supplied the injury-causing product.\nUnder this approach, each manufacturer\xe2\x80\x99s liability would approximate its responsibility for the\ninjuries caused by its own products. Some minor discrepancy in the correlation between market\nshare and liability is inevitable; therefore, a defendant may be held liable for a somewhat different\npercentage of the damage than its share of the appropriate market would justify. It is probably\nimpossible, with the passage of time, to determine market share with mathematical exactitude. But\njust as a jury cannot be expected to determine the precise relationship between fault and liability in\napplying the doctrine of comparative fault or partial indemnity, the difficulty of apportioning\ndamages among the defendant producers in exact relation to their market share does not seriously\nmilitate against the rule we adopt. As we said in Summers with regard to the liability of independent\ntortfeasors, where a correct division of liability cannot be made \xe2\x80\x9cthe trier of fact may make it the\nbest it can.\xe2\x80\x9d\nWe are not unmindful of the practical problems involved in defining the market and\ndetermining market share,3 but these are largely matters of proof which properly cannot be\ndetermined at the pleading stage of these proceedings. Defendants urge that it would be both unfair\nand contrary to public policy to hold them liable for plaintiff\xe2\x80\x99s injuries in the absence of proof that\none of them supplied the drug responsible for the damage. Most of their arguments, however, are\nbased upon the assumption that one manufacturer would be held responsible for the products of\nanother or for those of all other manufacturers if plaintiff ultimately prevails. But under the rule we\nadopt, each manufacturer\xe2\x80\x99s liability for an injury would be approximately equivalent to the damage\ncaused by the DES it manufactured. The judgments are reversed.\nRichardson, Justice, dissenting:\nI respectfully dissent. In these consolidated cases the majority adopts a wholly new theory which\ncontains these ingredients: The plaintiffs were not alive at the time of the commission of the tortious\nacts. They sue a generation later. They are permitted to receive substantial damages from multiple\ndefendants without any proof that any defendant caused or even probably caused plaintiffs\xe2\x80\x99 injuries.\n3\n\nDefendants assert that there are no figures available to determine market share, that DES was provided for a number\nof uses other than to prevent miscarriage and it would be difficult to ascertain what proportion of the drug was used as a\nmiscarriage preventative, and that the establishment of a time frame and area for market share would pose problems.\n\n\x0c178\n\nTORT LAW\n\nAlthough the majority purports to change only the required burden of proof by shifting it from\nplaintiffs to defendants, the effect of its holding is to guarantee that plaintiffs will prevail on the\ncausation issue because defendants are no more capable of disproving factual causation than\nplaintiffs are of proving it. \xe2\x80\x9cMarket share\xe2\x80\x9d liability thus represents a new high water mark in tort\nlaw. The ramifications seem almost limitless\xe2\x80\xa6. In my view, the majority\xe2\x80\x99s departure from\ntraditional tort doctrine is unwise\xe2\x80\xa6.\nThe \xe2\x80\x9cmarket share\xe2\x80\x9d thesis may be paraphrased. Plaintiffs have been hurt by someone who made\nDES. Because of the lapse of time no one can prove who made it. Perhaps it was not the named\ndefendants who made it, but they did make some. Although DES was apparently safe at the time it\nwas used, it was subsequently proven unsafe as to some daughters of some users. Plaintiffs have\nsuffered injury and defendants are wealthy. There should be a remedy. Strict products liability is\nunavailable because the element of causation is lacking. Strike that requirement and label what\nremains \xe2\x80\x9calternative\xe2\x80\x9d liability, \xe2\x80\x9cindustry-wide\xe2\x80\x9d liability, or \xe2\x80\x9cmarket share\xe2\x80\x9d liability, proving thereby\nthat if you hit the square peg hard and often enough the round holes will really become square,\nalthough you may splinter the board in the process\xe2\x80\xa6.\n1.\n\nQUESTIONS\nPheasants to Pharma: Why can\xe2\x80\x99t the Sindell court rely on Summers and call it a day? In\nterms of proving causation, how might Sindell provide a less radical rule than Summers?\n\n2.\n\nWhat\xe2\x80\x99s Tort Law Up To? Does Sindell\xe2\x80\x99s market-share liability serve the goals of tort law?\nDRAG SUPERSTAR PROBLEM\n\nPaul and Michelle are competing in America\xe2\x80\x99s Next Drag Superstar, an annual drag race in the\nresidential neighborhood of Beverley Hills. As they hurtle toward the finish line, Michelle loses\ncontrol of her car and crashes into Carson, who\xe2\x80\x99s walking his dog nearby. Ross, a friend of Paul\xe2\x80\x99s\nwho attends all his races, watches in horror from the crowd.\n(a) Who should Carson sue?\n(b) What\xe2\x80\x99s Carson\xe2\x80\x99s best theory of liability as to each potential defendant?\nUNION PUMP CO. v. ALLBRITTON\nSupreme Court of Texas (1995)\nOwen, Justice:\n\n\xc3\xa3\n\nThe issue in this case is whether the condition, act, or\nomission of which a personal injury plaintiff complains was,\nas a matter of law, too remote to constitute legal causation.\nPlaintiff brought suit alleging negligence\xe2\x80\xa6, and the trial\ncourt granted summary judgment for the defendant. The\ncourt of appeals reversed and remanded, holding that the\nplaintiff raised issues of fact concerning [proximate cause].\nBecause we conclude that there was no legal causation as a\nmatter of law, we reverse the judgment of the court of\nappeals and render judgment that plaintiff take nothing.\nOn the night of September 4, 1989, a fire occurred at Texaco Chemical Company\xe2\x80\x99s facility in Port\nArthur, Texas. A pump manufactured by Union Pump Company caught fire and ignited the\nsurrounding area. This particular pump had caught on fire twice before. Sue Allbritton, a trainee\nemployee of Texaco Chemical, had just finished her shift and was about to leave the plant when the\nfire erupted. She and her supervisor Felipe Subia, Jr., were directed to and did assist in abating the fire.\nApproximately two hours later, the fire was extinguished. However, there appeared to be a\nproblem with a nitrogen purge valve, and Subia was instructed to block in the valve. Viewing the\n\xc3\xa3\n\nLady Dragonfly, Emergency Fire Crews (CC BY 2.0).\n\n\x0cCASES & CRITIQUE\n\n179\n\nfacts in a light most favorable to Allbritton, there was some evidence that an emergency situation\nexisted at that point in time. Allbritton asked if she could accompany Subia and was allowed to do\nso. To get to the nitrogen purge valve, Allbritton followed Subia over an aboveground pipe rack,\nwhich was approximately two and one-half feet high, rather than going around it. It is undisputed\nthat this was not the safer route, but it was the shorter one. Upon reaching the valve, Subia and\nAllbritton were notified that it was not necessary to block it off. Instead of returning by the route\naround the pipe rack, Subia chose to walk across it, and Allbritton followed. Allbritton was injured\nwhen she hopped or slipped off the pipe rack. There is evidence that the pipe rack was wet because\nof the fire and that Allbritton and Subia were still wearing fireman\xe2\x80\x99s hip boots and other firefighting\ngear when the injury occurred. Subia admitted that he chose to walk over the pipe rack rather than\ntaking a safer alternative route because he had a \xe2\x80\x9cbad habit\xe2\x80\x9d of doing so.\nAllbritton sued Union Pump, alleging\xe2\x80\xa6that the defective pump was a [proximate cause] of her\ninjuries. But for the pump fire, she asserts, she would never have walked over the pipe rack, which\nwas wet with water or firefighting foam\xe2\x80\xa6. The question before this Court is whether Union Pump\nestablished as a matter of law that neither its conduct nor its product was a legal cause of Allbritton\xe2\x80\x99s\ninjuries. Stated another way, was Union Pump correct in contending that there was no causative\nlink between the defective pump and Allbritton\xe2\x80\x99s injuries as a matter of law?\nNegligence requires a showing of proximate cause\xe2\x80\xa6. At some point in the causal chain, the\ndefendant\xe2\x80\x99s conduct or product may be too remotely connected with the plaintiff\xe2\x80\x99s injury to\nconstitute legal causation\xe2\x80\xa6. [D]efining the limits of legal causation eventually mandates weighing\nof policy considerations. [Consider] Springall v. Fredericksburg Hospital & Clinic, 225 S.W.2d 232\n(Tex. Ct.. App. 1949), in which the court of appeals observed:\nThe law does not hold one legally responsible for the remote results of his\nwrongful acts and therefore a line must be drawn between immediate and remote\ncauses. The doctrine of \xe2\x80\x9cproximate cause\xe2\x80\x9d is employed to determine and fix this\nline and \xe2\x80\x9cis the result of an effort by the courts to avoid, as far as possible the\nmetaphysical and philosophical niceties in the age-old discussion of causation,\nand to lay down a rule of general application which will, as nearly as may be done\nby a general rule, apply a practical test, the test of common experience, to human\nconduct when determining legal rights and legal liability.\nDrawing the line between where legal causation may exist and where, as a matter of law, it\ncannot, has generated a considerable body of law. Our Court has considered where the limits of legal\ncausation should lie in the factually analogous case of Lear Siegler, Inc. v. Perez, 819 S.W.2d 470 (Tex.\n1991). The threshold issue was whether causation was negated as a matter of law in an action where\nnegligence and product liability theories were asserted. Perez, an employee of the Texas Highway\nDepartment, was driving a truck pulling a flashing arrow sign behind a highway sweeping operation\nto warn traffic of the highway maintenance. The sign malfunctioned when wires connecting it to the\ngenerator became loose, as they had the previous day. Perez got out of the truck to push the wire\nconnections back together, and an oncoming vehicle, whose driver was asleep, struck the sign, which\nin turn struck Perez. Perez\xe2\x80\x99s survivors brought suit against the manufacturer of the sign. In holding\nthat any defect in the sign was not the legal cause of Perez\xe2\x80\x99s injuries, we found a comment to\nthe Restatement (Second) of Torts, section 431, instructive on the issue of legal causation:\nIn order to be a legal cause of another\xe2\x80\x99s harm, it is not enough that the harm would\nnot have occurred had the actor not been negligent. The negligence must also be\na substantial factor in bringing about the plaintiff\xe2\x80\x99s harm. The word \xe2\x80\x9csubstantial\xe2\x80\x9d\nis used to denote the fact that the defendant\xe2\x80\x99s conduct has such an effect in\nproducing the harm as to lead reasonable men to regard it as a cause, using that\nword in the popular sense, in which there always lurks the idea of responsibility,\nrather than in the so-called \xe2\x80\x9cphilosophic sense,\xe2\x80\x9d which includes every one of the\ngreat number of events without which any happening would not have occurred.\nAs this Court explained in Lear Siegler, the connection between the defendant and the plaintiff\xe2\x80\x99s\ninjuries simply may be too attenuated to constitute legal cause. Legal cause is not established if the\n\n\x0c180\n\nTORT LAW\n\ndefendant\xe2\x80\x99s conduct or product does no more than furnish the condition that makes the plaintiff\xe2\x80\x99s\ninjury possible\xe2\x80\xa6.\nThis Court similarly considered the parameters of legal causation in Bell v. Campbell, 434 S.W.2d\n117 (Tex. 1968). In Bell, two cars collided, and a trailer attached to one of them disengaged and\noverturned into the opposite lane. A number of people gathered, and three of them were attempting\nto move the trailer when they were struck by another vehicle. This Court held that the parties to the\nfirst accident were not a proximate cause of the plaintiffs\xe2\x80\x99 injuries, reasoning:\nAll acts and omissions charged against respondents had run their course and were\ncomplete. Their negligence did not actively contribute in any way to the injuries\ninvolved in this suit. It simply created a condition which attracted the plaintiffs to\nthe scene, where they were injured by a third party\xe2\x80\xa6.\nEven if the pump fire were in some sense a \xe2\x80\x9cphilosophic\xe2\x80\x9d or \xe2\x80\x9cbut for\xe2\x80\x9d cause of Allbritton\xe2\x80\x99s\ninjuries, the forces generated by the fire had come to rest when she fell off the pipe rack. The fire had\nbeen extinguished, and Allbritton was walking away from the scene. Viewing the evidence in the\nlight most favorable to Allbritton, the pump fire did no more than create the condition that made\nAllbritton\xe2\x80\x99s injuries possible. We conclude that the circumstances surrounding her injuries are too\nremotely connected with Union Pump\xe2\x80\x99s conduct or pump to constitute a legal cause of her\ninjuries. Accordingly, we reverse the judgment of the court of appeals\xe2\x80\xa6.\nCornyn, Justice, concurring:\nI concur in the Court\xe2\x80\x99s judgment, but for different reasons than those given in its opinion. I\nwould hold that although the defective pump was a cause-in-fact of Sue Allbritton\xe2\x80\x99s injury, neither\nUnion Pump\xe2\x80\x99s negligence nor the defective pump was a legal cause of her injury. Because the Court\xe2\x80\x99s\nopinion conflates foreseeability and other policy issues with its cause-in-fact analysis, I do not join\nits opinion\xe2\x80\xa6.\nThis case does not present a question of cause-in-fact. The pump defect clearly was a \xe2\x80\x9cbut for\xe2\x80\x9d\ncause of Allbritton\xe2\x80\x99s injuries: assuming the truth of Allbritton\xe2\x80\x99s allegations, as we must in this\nsummary judgment case, if the pump had not been defective, there would have been no fire, and\nAllbritton would have gone home uninjured at the end of her shift\xe2\x80\xa6.\nBut determining that the defect was the cause-in-fact of Allbritton\xe2\x80\x99s injuries does not end the\ninquiry. We must decide whether the pump defect meets the second prong of [proximate cause]. In\nproximate cause, this other element is foreseeability, but it also incorporates policy driven decisions\nsuch as when subsequent events will be treated as intervening causes. In this case, the injury to\nAllbritton was not foreseeable. Allbritton\xe2\x80\x99s injuries were the result of a needlessly dangerous\nshortcut taken after the crisis had subsided.1 Holding Union Pump liable for Allbritton\xe2\x80\x99s failure to\nuse proper care in exiting the area of the fire after the crisis has ended is akin to holding it liable for\nan auto accident she suffered on the way home, even though the accident probably would not have\noccurred had she left after her normal shift. Foreseeability allows us to cut off Union Pump\xe2\x80\x99s liability\nat some point; I would do so at the point the crisis had abated or at the point that Allbritton and\nSubia departed from their usual, safe path\xe2\x80\xa6.\nSpector, Justice, dissenting:\n\xe2\x80\xa6The record reflects that at the time Sue Allbritton\xe2\x80\x99s injury occurred, the forces generated by\nthe fire in question had not come to rest. Rather, the emergency situation was continuing. The whole\narea of the fire was covered in water and foam; in at least some places, the water was almost kneedeep. Allbritton was still wearing hip boots and other gear, as required to fight the fire. Viewing all\nthe evidence in the light most favorable to Allbritton, I agree with Justice Cornyn that the pump\ndefect was\xe2\x80\xa6 a \xe2\x80\x9cbut-for\xe2\x80\x9d cause\xe2\x80\xa6and was therefore a cause in fact [of Allbritton\xe2\x80\x99s injury].\nThis case is markedly different from the two main cases on which the majority relies: Lear Siegler,\nInc. v. Perez and Bell v. Campbell. In each of those cases, a defendant\xe2\x80\x99s negligence simply created a\n1\nMy conclusion might be different had Allbritton taken the shortcut under emergency conditions because it is\nforeseeable that workers might take extraordinary risks in trying to extinguish a dangerous fire.\n\n\x0cCASES & CRITIQUE\n\n181\n\ncondition that attracted an individual to the scene, where a negligent third party inflicted an injury.\nHere, in contrast, there was no negligent third party. To whatever extent Allbritton\xe2\x80\x99s own negligence\nmay have contributed to her injury, a jury should be allowed to allocate comparative responsibility\xe2\x80\xa6.\n1.\n\nQUESTIONS\nOne Step at a Time: Pause before getting to proximate cause. Was the defective pump\nan actual cause of Allbritton\xe2\x80\x99s injury?\n\n2.\n\nCommuting Conundrums: Do you think Union Pump should be liable for Allbritton\xe2\x80\x99s\ninjury? What if she\xe2\x80\x99d crashed her car while driving home and could show that she\nwouldn\xe2\x80\x99t have been injured had she not stayed late at work to deal with the defective\npump? What if the crash instead happened on her way to fight the fire?\n\n3.\n\nCutting Corners: Justice Cornyn\xe2\x80\x99s concurrence wants to focus on Allbritton\xe2\x80\x99s decision\nto take a shortcut. To which element does he think this fact is relevant? How does the\ndissent differ on this score?\nJOLLEY v. SUTTON LONDON BOROUGH COUNCIL\nHouse of Lords (2000)\n\nSteyn, Lord:\n\n\xc3\xa3\n\nMy Lords, On 8 April 1990, in the grounds of a\nblock of council flats owned and occupied by the\nLondon Borough of Sutton, Justin Jolley, then a\nschoolboy aged 14, sustained serious spinal injuries\nin an accident. It arose when a small abandoned\ncabin cruiser [a boat], which had been left lying in\nthe grounds of the block of flats, fell on Justin as he\nlay underneath it while attempting to repair and\npaint it. As a result he is now a paraplegic. He\nclaimed damages in tort from the council\xe2\x80\xa6. After\na seven day trial in 1998 Mr. Geoffrey Brice, Q.C., a Deputy High Court Judge, gave judgment for\nJustin but reduced the damages by 25 per cent. by virtue of a finding of contributory negligence. The\njudge awarded damages in the sum of \xc2\xa3621,710\xe2\x80\xa6. The council appealed. The Court of Appeal\nunanimously reversed the judge\xe2\x80\x99s conclusions on the merits and entered judgment for the council\xe2\x80\xa6.\nThe council own and occupy the common parts of a block of council flats known as Hayling\nCourt at North Cheam in Surrey. In 1987 a boat was brought on a trailer to the grounds of Hayling\nCourt. It was placed on a grassed area where children played. The boat was abandoned. It was\nexposed to the elements and became derelict and rotten. It was neither covered nor fenced around.\nThe trailer was by the side of the boat. In December 1988 the council placed a sticker on the boat\nwhich was in a form used for abandoned cars. It read \xe2\x80\x9cDanger do not touch this vehicle unless you\nare the owner\xe2\x80\x9d and stated that it would be removed within seven days unless claimed by its owner.\nComplaints about the boat were made to the council by residents of the block of flats. In the early\nSummer of 1989 when he was 13 Justin and a friend, Karl Warnham, saw the boat when they were\nwalking past the flats. In February 1990 the two boys returned to the boat, planning to repair it and\ntake it to Cornwall to sail it. Justin was by then 14 years old. They swivelled the boat round, and\nlifted the front end of the boat onto the trailer so as to be able to get under the boat to repair the hull.\nThe trailer supports made holes in the wooden structure of the boat. Accordingly, the boys pulled\nthe boat off the trailer. In order to repair the holes in the hull, Justin took a car jack and some wood\nfrom his home and the boys jacked the front of the abandoned boat up some 2 \xc2\xbd feet. In that position\nthe boys painted part of the boat, and attempted to repair holes with wood, nails and glue. On one\noccasion one of the boys put his foot through the structure. Justin and Karl had worked on the boat\non about five occasions over some six weeks from February 1990 until the date of the accident. On\n\xc3\xa3\n\nUK Parliament, Passing of House of Lords Act 1999 (CC BY-NC-ND 2.0).\n\n\x0c182\n\nTORT LAW\n\n8 April 1990 Justin and Karl were underneath the jacked up boat working on it. After a while Justin\nnoticed that Karl had crawled out from under the boat. Justin remained. The boat seemed to rock\nabove him. He tried to get out from under the boat but before he could do so it came down onto\nhim and caused him to suffer a broken back and consequent paraplegia. The immediate cause of the\ncollapse was that the boat toppled off the jack and other material upon which it was propped. It was\nnot established that the derelict or rotten condition of the boat was causative of the collapse.\nIn a careful and detailed judgment the judge analysed the evidence and made detailed findings\nof fact. He then quoted the relevant statutory provisions. Section 2(2) of the Occupiers\xe2\x80\x99 Liability Act\n1957 defines the \xe2\x80\x9ccommon duty of care\xe2\x80\x9d as: \xe2\x80\x9ca duty to take such care as in all the circumstances of\nthe case is reasonable to see that the visitor will be reasonably safe in using the premises for the\npurposes for which he is invited or permitted by the occupier to be there.\xe2\x80\x9d Sub-section (3) provides:\n\xe2\x80\x9cThe circumstances relevant for the present purpose include the degree of care, and of want of care,\nwhich would ordinarily be looked for in such a visitor, so that (for example) in proper cases\xe2\x80\xa6an\noccupier must be prepared for children to be less careful than adults.\xe2\x80\x9d\nThe judge observed that it has long been established that children are or may be attracted to\nmeddle with objects on premises or property which constitute a danger when meddled with. He\nstated in very general terms that the occupier is under a duty to protect a child from danger caused\nby meddling with such an object by taking reasonable steps in the circumstances including, where\nappropriate, removing the object altogether so as to avoid the prospect of injury\xe2\x80\xa6.\nThe judge then recorded his conclusions:\nDid the boat present a trap or allurement to the plaintiff and Karl and one which\npresented a danger of physical injury to them? If so, was this state of affairs\nreasonably foreseeable to the defendants such that they ought to have taken\nmeasure in good time to protect boys such as the plaintiff from such danger? One\nmust keep well in mind that this case is concerned with boys aged 13 and 14. The\nboat was on a grassed area outside a block of council flats in an area where there\nwere abandoned cars. I have no doubt that the presence of the boat was something\nwhich one ought to anticipate would be an attraction to children of differing ages.\nYounger children might simply play on it and in its rotting condition might suffer\ninjury, perhaps of a quite minor nature. Mr. Palmer stressed that these two boys\nwere not so much playing with the boat as working on it. I do not believe any such\ndistinction assists the defendants. Play can take the form of mimicking adult\nbehaviour. It was reasonably foreseeable that children including those of the age\nof the plaintiff would meddle with the boat at risk of some physical injury. So far\nas this type of accident was concerned, it is really only likely to occur if the child\nwas a young teenage boy with strength and ability to raise the boat and prop it up.\nAbandoned cars were clearly treated by the defendants as a potential source of\ndanger and this abandoned boat must also have fallen into that category. Although\nthe warning DANGER contained on the stickers is not conclusive as to whether a\nparticular object presented a danger it is at least a pointer in that direction.\nThere was no reason in fact or in law preventing the defendants from\nremoving and disposing of the boat well before the accident (as actually occurred\nafter it). As owners and occupiers of the Hayling Court estate they were entitled\nto remove and dispose of abandoned motor cars and an abandoned boat. Further\nthey had statutory powers as a local authority under section 6 of the Refuse\nDisposal (Amenity) Act 1978 to remove and dispose of this abandoned boat. I find\nthat is what the defendants ought to have done, not merely because the boat was\nan eyesore but because it was a trap or allurement to children.\nThe judge summed up his conclusion as follows:\nI find that the type of accident and injury which occurred in this case was\nreasonably foreseeable (albeit that it involved significant meddling with the boat\nby two young teenage boys and that the injuries proved to be very severe) and that\n\n\x0cCASES & CRITIQUE\n\n183\n\nthe actions of the plaintiff and/or Karl did not amount to a novus actus.\nAccordingly, I find the defendants in breach of their duty to the plaintiff as\noccupiers and (subject to the point on contributory negligence considered below)\nliable to the plaintiff for the injury, loss and damage which he has sustained.\nI have set out these findings of fact at length because the interpretation of the judge\xe2\x80\x99s finding\nbecame controversial during the hearing of the appeal in the House.\nThe leading judgment in the Court of Appeal was given by Lord Woolf M.R. He cited extensively\n[The Wagon Mound cases]:\nThe judge attached importance to the presence of the boat as being both an\nallurement and a trap. While this can be of significance in some cases it is only\npart of the background to this case. There can be no dispute that, if this boat was\nleft in this position, children would be attracted by it and would play with it. This\nwas conceded. It was also a trap in the sense that it was not immediately apparent\nthat it was in a rotten condition, that is in a condition where it could prove\ndangerous because a child could find that a plank or planks gave way. It was a\ncombination of these two features that made it the duty of the council to have the\nboat removed. They failed to do this and in that respect they were negligent.\nHowever, these features, the attractiveness of the boat to children and its\ndangerous condition, were not established to be part of the causes of the accident.\nThe immediate cause of the accident was that the two boys jacked and propped\nthe boat up so that they could work underneath it and did so in a way that meant\nthat the boat was unstable and could and did fall on the plaintiff.\nThe question which has to be asked is: was this accident in the words of Lord\nPearce \xe2\x80\x9cof a different type and kind from anything that a defender could have\nforeseen?\xe2\x80\x9d In answering this question it is necessary to have well in mind that the\ncouncil should have appreciated that it is difficult to anticipate what children will\ndo when playing with a boat of this sort. Boats, like cars, if they were left\n\xe2\x80\x9cabandoned\xe2\x80\x9d in an area where children have access, will certainly attract children\nto play with them. But what the plaintiff was engaged on was an activity very\ndifferent from normal play.\nEven making full allowance for the unpredictability of children\xe2\x80\x99s behaviour,\nI am driven to conclude that it was not reasonably foreseeable that an accident\ncould occur as a result of the boys deciding to work under a propped up boat. Nor\ncould any reasonably similar accident have been foreseen. Ironically the state of\nthe boat was so poor that it made it less likely that it would be repairable or that\nboys would embark on doing the necessary repairs. The photographs of the boat\nand the evidence of Mr. Hall indicate that it was a fairly heavy structure. It would\nbe by no means easy for the boat to be moved or raised. In deciding whether the\naccident was foreseeable it is important not only to consider the precise accident\nwhich occurred but the class of accident\xe2\x80\xa6.\n\xe2\x80\xa6[T]he Court of Appeal never squarely addressed the question whether the judge\xe2\x80\x99s critical\nfinding was open to him on the evidence. For my part the judge\xe2\x80\x99s reasons for that finding are\nconvincing in the context of teenage boys attracted by an obviously abandoned boat. And I do not\nregard what they did as so very different from normal play. The judge\xe2\x80\x99s observation that play can\ntake the form of mimicking adult behaviour is a perceptive one. It is true, of course, that one is not\ndealing with a challenge to an issue of primary fact. The issue whether an accident of the particular\ntype was reasonably foreseeable is technically a secondary fact but perhaps it is more illuminating to\ncall it an informed opinion by the judge in the light of all the circumstances of the case. In my view\nit was an opinion which is justified by the particular circumstances of the case. Counsel has not\npersuaded me that the judge\xe2\x80\x99s view was wrong. And I would hold that the Court of Appeal was not\nentitled to disturb the judge\xe2\x80\x99s findings of fact\xe2\x80\xa6.\n\n\x0c184\n\nTORT LAW\n\nVery little needs to be said about the law. The decision in this case has turned on the detailed\nfindings of fact at first instance on the particular circumstances of this case. Two general\nobservations are, however, appropriate. First, in this corner of the law the results of decided cases\nare inevitably very fact-sensitive. Both counsel nevertheless at times invited your Lordships to\ncompare the facts of the present case with the facts of other decided cases. That is a sterile exercise.\nPrecedent is a valuable stabilising influence in our legal system. But, comparing the facts of and\noutcomes of cases in this branch of the law is a misuse of the only proper use of precedent, viz to\nidentify the relevant rule to apply to the facts as found.\nSecondly, Lord Woolf M.R. made an observation casting doubt on part of Lord Reid\xe2\x80\x99s speech\nin Hughes v. Lord Advocate [1963] A.C. 837. The defendants left a manhole uncovered and protected\nonly by a tent and paraffin lamp. A child climbed down the hole. When he came out he kicked over\none of the lamps. It fell into the hole and caused an explosion. The child was burned. The Court of\nSession held that there was no liability. The House of Lords reversed the decision of the Court of\nSession. In the present case Lord Woolf cited the following parts of [that case]:\nSo we have (first) a duty owned by the workmen, (secondly) the fact that if they\nhad done as they ought to have done there would have been no accident, and\n(thirdly) the fact that the injuries suffered by the appellant, though perhaps\ndifferent in degree, did not differ in kind from injuries which might have resulted\nfrom an accident of a foreseeable nature. The ground on which this case has been\ndecided against the appellant is that the accident was of an unforeseeable type. Of\ncourse, the pursuer has to prove that the defender\xe2\x80\x99s fault caused the accident and\nthere could be a case where the intrusion of a new and unexpected factor could be\nregarded as the cause of the accident rather than the fault of the defender. But that\nis not this case. The cause of this accident was a known source of danger, the lamp,\nbut it behaved in an unpredictable way. This accident was caused by a known\nsource of danger, but caused in a way which could not have been foreseen and in\nmy judgment, that affords no defence.\nLord Woolf M.R. observed that he had difficulty in reconciling these remarks with the approach\nin The Wagon Mound (No. 1) [1961] A.C. 388. It is true that in The Wagon Mound (No. 1) Viscount\nSimonds at one stage observed:\n\xe2\x80\x9cIf, as admittedly it is, B\xe2\x80\x99s liability (culpability) depends on the reasonable\nforeseeability of the consequent damage, how is that to be determined except by\nthe foreseeability of the damage which in fact happened - the damage in suit?\xe2\x80\x9d\nBut this is to take one sentence in the judgment in The Wagon Mound (No. 1) out of context.\nViscount Simonds was in no way suggesting that the precise manner of which the injury occurred\nnor its extent had to be foreseeable. And Lord Reid was saying no more. The speech of Lord Reid\nin Hughes v. Lord Advocate [1963] A.C. 837 is in harmony with the other judgments. It is not in\nconflict with The Wagon Mound (No. 1). The scope of the two modifiers\xe2\x80\x94the precise manner in\nwhich the injury came about and its extent\xe2\x80\x94is not definitively answered by either The Wagon\nMound (No. 1) or Hughes v. Lord Advocate. It requires determination in the context of an intense\nfocus on the circumstances of each case.\nMy Lords, I would restore the wise decision of Mr. Geoffrey Brice, Q.C., the Deputy High Court\njudge. I would allow the appeal. I would further remit the case to the Court of Appeal to enable it to\nconsider what course it should adopt on any application in regard to the determination of any issue\nrelating to quantum of damages.\nHoffmann, Lord:\nMy Lords,\xe2\x80\xa6It is\xe2\x80\xa6agreed that the plaintiff must show that the injury which he suffered fell\nwithin the scope of the council\xe2\x80\x99s duty and that in cases of physical injury, the scope of the duty is\ndetermined by whether or not the injury fell within a description which could be said to have been\nreasonably foreseeable. Donoghue v. Stevenson [1932] A.C. 562 of course established the general\nprinciple that reasonable foreseeability of physical injury to another generates a duty of care. The\n\n\x0cCASES & CRITIQUE\n\n185\n\nfurther proposition that reasonable foreseeability also governs the question of whether the injury\ncomes within the scope of that duty had to wait until The Wagon Mound (No. 1) for authoritative\nrecognition. Until then, there was a view that the determination of liability involved a two-stage\nprocess. The existence of a duty depended upon whether injury of some kind was foreseeable. Once\nsuch a duty had been established, the defendant was liable for any injury which had been \xe2\x80\x9cdirectly\ncaused\xe2\x80\x9d by an act in breach of that duty, whether such injury was reasonably foreseeable or not. But\nthe present law is that unless the injury is of a description which was reasonably foreseeable, it is\n(according to taste) \xe2\x80\x9coutside the scope of the duty\xe2\x80\x9d or \xe2\x80\x9ctoo remote.\xe2\x80\x9d\nIt is also agreed that what must have been foreseen is not the precise injury which occurred but\ninjury of a given description. The foreseeability is not as to the particulars but the genus. And the\ndescription is formulated by reference to the nature of the risk which ought to have been foreseen.\nSo, in Hughes v. Lord Advocate [1963] A.C. 837 the foreseeable risk was that a child would be injured\nby falling in the hole or being burned by a lamp or by a combination of both. The House of Lords\ndecided that the injury which actually materialised fell within this description, notwithstanding that\nit involved an unanticipated explosion of the lamp and consequent injuries of unexpected severity\xe2\x80\xa6.\nThe short point in the present appeal is therefore whether the judge was right in saying in general\nterms that the risk was that children would \xe2\x80\x9cmeddle with the boat at the risk of some physical injury\xe2\x80\x9d\nof whether the Court of Appeal were right in saying that the only foreseeable risk was of \xe2\x80\x9cchildren\nwho were drawn to the boat climbing upon it and being injured by the rotten planking giving way\nbeneath them.\xe2\x80\x9d Was the wider risk, which would include within its description the accident which\nactually happened, reasonably foreseeable?\xe2\x80\xa6\n[Counsel for the borough] says that apart from its rotten planking, the boat was simply a heavy\nobject like any other. It was no more likely to cause injury to the children than any other heavy object\nthey might be able to get hold of. He draws the analogy of a man who negligently leaves a loaded\ngun where children play with it and one child injures another by dropping it on his toe. The injury\ndoes not fall within the scope of the risk created by the fact that it is a gun rather than some other\nheavy but innocuous object\xe2\x80\xa6.\nI think that in a case like this, analogies from other imaginary facts are seldom helpful. Likewise\nanalogies from real facts in other cases: I entirely agree with my noble and learned friend Lord Steyn\nin deploring the citation of cases which do nothing to illuminate any principle but are said to\nconstitute analogous facts. In the present case, the rotten condition of the boat had a significance\nbeyond the particular danger it created. It proclaimed the boat and its trailer as abandoned, res nullius,\nthere for the taking, to make of them whatever use the rich fantasy life of children might suggest\xe2\x80\xa6.\n[I]t has been repeatedly said in cases about children that their ingenuity in finding unexpected\nways of doing mischief to themselves and others should never be underestimated. For these reasons,\nI think that the judge\xe2\x80\x99s broad description of the risk as being that children would \xe2\x80\x9cmeddle with the\nboat at the risk of some physical injury\xe2\x80\x9d was the correct one to adopt on the facts of this case. The\nactual injury fell within that description and I would therefore allow the appeal\xe2\x80\xa6.\n1.\n\nQUESTIONS\nPhilosophizing Foreseeability: What does the court mean when it says that\n\xe2\x80\x9cforeseeability is not as to the particulars but the genus\xe2\x80\x9d?\n\n2.\n\nKids Will Be Kids: What was the risk that the council ought to have foreseen? Was it\nkids playing in the boat? Kids attempting to repair the boat so that they could take it to\nCornwall and fight pirates? Something else?\n\n3.\n\nJolley Good Show: Imagine that the boys successfully repair the boat. En route to the\nCornish coast, they stop at a gas station to buy a pasty (not a typo\xe2\x80\xa6 Google it) and see\nthat the wooden hull is crumbling. As they try to stop the boat from slipping off the\ntrailer, Justin severely hurts his hand. Did the council\xe2\x80\x99s carelessness proximately cause\nhis injuries?\n\n\x0c186\n\nTORT LAW\n\nDATE NIGHT(MARE) PROBLEM\nA few lads were on hole 17 at the legendary Ocean Course at Kiawah Island. Derrick thought it\nwould be funny to hit his ball into the water, and naturally his friends egged him on and opened\ntheir Snapchats to record. He swung hard and struck his ball perfectly. Destiny, who owns a house\non the water, was riding by on her hydrofoil surfboard, and Derrick\xe2\x80\x99s ball struck their left eye.\nDestiny was supposed to go out on a date that night. But their eye was swollen shut, so they\ncanceled their plans, threw on some shades and a hoodie, and went to the bar to drink away their\nsorrows. On their drive home, they were going below the speed limit in their lane when they hit a\ncyclist, Grady, who was dressed in all black and riding without bike lights or reflectors. After Destiny\nhit Grady, they swerved and hit a light pole and whacked their right eye on the steering wheel.\nGrady bruised his hip in the fall. After flicking off Destiny, he was hobbling toward the opposite\nlane to retrieve his bike when something hit his head. Bryce, an 8-year-old boy, had his feet dangling\nfrom the passenger window of a minivan driving in the other direction. The blow from Bryce\xe2\x80\x99s feet\nknocked Grady unconscious. The minivan pulled over. Then, in Kiawah fashion, the weather\nchanged suddenly. A lightning bolt struck a tree that promptly fell on Destiny\xe2\x80\x99s car and the minivan.\n(a)\n(b)\n(c)\n(d)\n\nFor which injuries might Derrick be held liable? Which injuries did he proximately cause?\nHow about Grady?\nAnd Destiny?\nIs anyone else on the hook for negligence?\nTIKTOK CHALLENGE PROBLEM\n\nDevi was on her daily commute, riding the New York subway home to Brooklyn from her office\nin Manhattan. As she stepped off the train and onto the platform at her station, she saw a crowd of\nteenagers skateboarding toward her to complete a new viral TikTok challenge, achieved by jumping\nonto trains after the doors have started closing. The train doors closed, but another passenger on the\nplatform saw one teen hurtling toward the train and yelled, \xe2\x80\x9cOpen the doors, open the doors! Hold\nthe train!\xe2\x80\x9d Though the driver\xe2\x80\x99s view of the platform was partially blocked by a pillar, the train doors\nsuddenly burst opened and then began to close again slowly. The teen sped up, plowed into Devi,\nand jumped over her body through the closing doors. The train pulled away. Devi, meanwhile, lay\nin agony on the platform. She suffered a serious ankle injury and won\xe2\x80\x99t be able to continue her\nlongtime hobby of marathon running, even after surgery to repair the damage. Footage of the whole\nevent went viral online, yet the TikTok teen was never identified. Devi sues New York City Transport\n(NYCT), which operates the subway, for negligence.\n(a) Did NYCT owe Devi a duty? If so, did it breach that duty?\n(b) If so, was that breach an actual and proximate cause of Devi\xe2\x80\x99s injuries? Imagine NYCT\nargues that \xe2\x80\x9cthe reopening and closing of the doors, if it were in fact a negligent act,\nmight be expected to cause injury to a passenger falling from the train or becoming\nentangled in the doors, but it simply could not be expected that because the doors were\nreopened the unidentified teen would run directly into the plaintiff.\xe2\x80\x9d Are you persuaded?\n(c) Does it matter whether this accident was reasonably foreseeable to the driver? If so, how?\n(d) Should we be concerned about the policy implications of imposing liability in a case like\nthis? NYCT makes the following argument: \xe2\x80\x9cThe concepts of duty and proximate cause\nrest upon considerations of sound public policy. If NYCT were to be exposed to liability\nmerely because train doors are opened, or not opened, in every instance where persons\nare running to catch trains, operation of the transit system would be impossible, and\ndefendant would be cast as an insurer of its passengers.\xe2\x80\x9d Do you share this worry?\n(e) Once you\xe2\x80\x99ve read the next two cases and problem, return to Devi\xe2\x80\x99s lawsuit. Was the\nTikTok teen\xe2\x80\x99s intervening conduct the superseding cause of Devi\xe2\x80\x99s injuries? Even\nassuming that the train driver was negligent, did his act merely furnish the conditions\nfor an unrelated and unforeseeable act that caused Devi\xe2\x80\x99s injuries?\n(f) If Devi also sues the passenger who yelled, might she have a better negligence claim?\n\n\x0cCASES & CRITIQUE\n\n187\n\nPALSGRAF v. LONG ISLAND RAILROAD CO.\nCourt of Appeals of the State of New York (1928)\nCardozo, Chief Judge:\n\n\xc3\xa3\n\nPlaintiff was standing on a platform of\ndefendant\xe2\x80\x99s railroad after buying a ticket to\ngo to Rockaway Beach. A train stopped at the\nstation, bound for another place. Two men\nran forward to catch it. One of the men\nreached the platform of the car without\nmishap, though the train was already\nmoving. The other man, carrying a package,\njumped aboard the car, but seemed unsteady\nas if about to fall. A guard on the car, who had\nheld the door open, reached forward to\nhelp him in, and another guard on the platform pushed him from\nbehind. In this act, the package was dislodged, and fell upon the rails.\nIt was a package of small size, about fifteen inches long, and was\ncovered by a newspaper. In fact it contained fireworks, but there was\nnothing in its appearance to give notice of its contents. The fireworks\nwhen they fell exploded. The shock of the explosion threw down some\nscales at the other end of the platform, many feet away. The scales\nstruck the plaintiff, causing injuries for which she sues.\nThe conduct of the defendant\xe2\x80\x99s guard, if a wrong in its relation to\nthe holder of the package, was not a wrong in its relation to the plaintiff,\nstanding far away. Relatively to her it was not negligence at all. Nothing\nin the situation gave notice that the falling package had in it the potency\nof peril to persons thus removed. Negligence is not actionable unless it\ninvolves the invasion of a legally protected interest, the violation of a\nright. Proof of negligence in the air, so to speak, will not do. Negligence\nis the absence of care, according to the circumstances. The plaintiff as\nshe stood upon the platform of the station might claim to be protected\nagainst intentional invasion of her bodily security. Such invasion is not\ncharged. She might claim to be protected against unintentional\ninvasion by conduct involving in the thought of reasonable men an\nunreasonable hazard that such invasion would ensue. These, from the\npoint of view of the law, were the bounds of her immunity, with\nperhaps some rare exceptions, survivals for the most part of ancient\nforms of liability, where conduct is held to be at the peril of the actor. If\nno hazard was apparent to the eye of ordinary vigilance, an act innocent\nand harmless, at least to outward seeming, with reference to her, did\nnot take to itself the quality of a tort because it happened to be a wrong,\nthough apparently not one involving the risk of bodily insecurity, with\nreference to some one else. In every instance, before negligence can be\npredicated of a given act, back of the act must be sought and found a\nduty to the individual complaining, the observance of which would\nhave averted or avoided the injury. The ideas of negligence and duty\nare strictly correlative. The plaintiff sues in her own right for a wrong\npersonal to her, and not as the vicarious beneficiary of a breach of duty\nto another.\nA different conclusion will involve us, and swiftly too, in a maze of\ncontradictions. A guard stumbles over a package which has been left\n\xc3\xa3\n\nBomb Blast Injures 13 in Station Crowd, N.Y. Times (Aug. 25, 1924).\n\n\x0c188\n\nTORT LAW\n\nupon a platform. It seems to be a bundle of newspapers. It turns out to be a can of dynamite. To the\neye of ordinary vigilance, the bundle is abandoned waste, which may be kicked or trod on with\nimpunity. Is a passenger at the other end of the platform protected by the law against the\nunsuspected hazard concealed beneath the waste? If not, is the result to be any different, so far as\nthe distant passenger is concerned, when the guard stumbles over a valise which a truckman or a\nporter has left upon the walk? The passenger far away, if the victim of a wrong at all, has a cause of\naction, not derivative, but original and primary. His claim to be protected against invasion of his\nbodily security is neither greater nor less because the act resulting in the invasion is a wrong to\nanother far removed. In this case, the rights that are said to have been violated, the interests said to\nhave been invaded, are not even of the same order. The man was not injured in his person nor even\nput in danger. The purpose of the act, as well as its effect, was to make his person safe. If there was a\nwrong to him at all, which may very well be doubted, it was a wrong to a property interest only, the\nsafety of his package. Out of this wrong to property, which threatened injury to nothing else, there\nhas passed, we are told, to the plaintiff by derivation or succession a right of action for the invasion\nof an interest of another order, the right to bodily security. The diversity of interests emphasizes the\nfutility of the effort to build the plaintiff\xe2\x80\x99s right upon the basis of a wrong to some one else. The gain\nis one of emphasis, for a like result would follow if the interests were the same. Even then, the orbit\nof the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty. One who\njostles one\xe2\x80\x99s neighbor in a crowd does not invade the rights of others standing at the outer fringe\nwhen the unintended contact casts a bomb upon the ground. The wrongdoer as to them is the man\nwho carries the bomb, not the one who explodes it without suspicion of the danger. Life will have to\nbe made over, and human nature transformed, before prevision so extravagant can be accepted as\nthe norm of conduct, the customary standard to which behavior must conform.\nThe argument for the plaintiff is built upon the shifting meanings of such words as \xe2\x80\x9cwrong\xe2\x80\x9d and\n\xe2\x80\x9cwrongful,\xe2\x80\x9d and shares their instability. What the plaintiff must show is \xe2\x80\x9ca wrong\xe2\x80\x9d to herself, i.e., a\nviolation of her own right, and not merely a wrong to some one else, nor conduct \xe2\x80\x9cwrongful\xe2\x80\x9d because\nunsocial, but not \xe2\x80\x9ca wrong\xe2\x80\x9d to any one. We are told that one who drives at reckless speed through a\ncrowded city street is guilty of a negligent act and, therefore, of a wrongful one irrespective of the\nconsequences. Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and\nunsocial in relation to other travelers, only because the eye of vigilance perceives the risk of damage.\nIf the same act were to be committed on a speedway or a race course, it would lose its wrongful\nquality. The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation;\nit is risk to another or to others within the range of apprehension. This does not mean, of course,\nthat one who launches a destructive force is always relieved of liability if the force, though known to\nbe destructive, pursues an unexpected path. It was not necessary that the defendant should have had\nnotice of the particular method in which an accident would occur, if the possibility of an accident\nwas clear to the ordinarily prudent eye. Some acts, such as shooting, are so imminently dangerous\nto any one who may come within reach of the missile, however unexpectedly, as to impose a duty of\nprevision not far from that of an insurer. Even today, and much oftener in earlier stages of the law,\none acts sometimes at one\xe2\x80\x99s peril. Under this head, it may be, fall certain cases of what is known as\ntransferred intent, an act willfully dangerous to A resulting by misadventure in injury to B. These\ncases aside, wrong is defined in terms of the natural or probable, at least when unintentional. The\nrange of reasonable apprehension is at times a question for the court, and at times, if varying\ninferences are possible, a question for the jury. Here, by concession, there was nothing in the\nsituation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread\nwreckage through the station. If the guard had thrown it down knowingly and willfully, he would\nnot have threatened the plaintiff\xe2\x80\x99s safety, so far as appearances could warn him. His conduct would\nnot have involved, even then, an unreasonable probability of invasion of her bodily security. Liability\ncan be no greater where the act is inadvertent.\nNegligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things\nrelated, is surely not a tort, if indeed it is understandable at all. Negligence is not a tort unless it\nresults in the commission of a wrong, and the commission of a wrong imports the violation of a\nright, in this case, we are told, the right to be protected against interference with one\xe2\x80\x99s bodily\nsecurity. But bodily security is protected, not against all forms of interference or aggression, but only\n\n\x0cCASES & CRITIQUE\n\n189\n\nagainst some. One who seeks redress at law does not make out a cause of action by showing without\nmore that there has been damage to his person. If the harm was not willful, he must show that the\nact as to him had possibilities of danger so many and apparent as to entitle him to be protected\nagainst the doing of it though the harm was unintended. Affront to personality is still the keynote of\nthe wrong. Confirmation of this view will be found in the history and development of the action on\nthe case. Negligence as a basis of civil liability was unknown to mediaeval law. For damage to the\nperson, the sole remedy was trespass, and trespass did not lie in the absence of aggression, and that\ndirect and personal. Liability for other damage, as where a servant without orders from the master\ndoes or omits something to the damage of another, is a plant of later growth. When it emerged out\nof the legal soil, it was thought of as a variant of trespass, an offshoot of the parent stock. This appears\nin the form of action, which was known as trespass on the case. The victim does not sue derivatively,\nor by right of subrogation, to vindicate an interest invaded in the person of another. Thus to view\nhis cause of action is to ignore the fundamental difference between tort and crime. He sues for breach\nof a duty owing to himself.\nThe law of causation, remote or proximate, is thus foreign to the case before us. The question of\nliability is always anterior to the question of the measure of the consequences that go with liability.\nIf there is no tort to be redressed, there is no occasion to consider what damage might be recovered\nif there were a finding of a tort. We may assume, without deciding, that negligence, not at large or\nin the abstract, but in relation to the plaintiff, would entail liability for any and all consequences,\nhowever novel or extraordinary. There is room for argument that a distinction is to be drawn\naccording to the diversity of interests invaded by the act, as where conduct negligent in that it\nthreatens an insignificant invasion of an interest in property results in an unforseeable invasion of\nan interest of another order, as, e.g., one of bodily security. Perhaps other distinctions may be\nnecessary. We do not go into the question now. The consequences to be followed must first be rooted\nin a wrong.\nThe judgment of the Appellate Division and that of the Trial Term should be reversed, and the\ncomplaint dismissed, with costs in all courts.\n\xc3\xa3\n\n\xc3\xa3\n\nWela Quan, Palsgraf v. Long Island Railroad Co., NY Bar Picture Book (CC BY-NC-ND 4.0) (adapted with permission).\n\n\x0c190\n\nTORT LAW\n\nAndrews, Judge, dissenting:\nAssisting a passenger to board a train, the defendant\xe2\x80\x99s servant negligently knocked a package\nfrom his arms. It fell between the platform and the cars. Of its contents the servant knew and could\nknow nothing. A violent explosion followed. The concussion broke some scales standing a\nconsiderable distance away. In falling they injured the plaintiff, an intending passenger.\nUpon these facts may she recover the damages she has suffered in an action brought against the\nmaster? The result we shall reach depends upon our theory as to the nature of negligence. Is it a\nrelative concept\xe2\x80\x94the breach of some duty owing to a particular person or to particular persons? Or\nwhere there is an act which unreasonably threatens the safety of others, is the doer liable for all its\nproximate consequences, even where they result in injury to one who would generally be thought to\nbe outside the radius of danger? This is not a mere dispute as to words. We might not believe that\nto the average mind the dropping of the bundle would seem to involve the probability of harm to\nthe plaintiff standing many feet away whatever might be the case as to the owner or to one so near\nas to be likely to be struck by its fall. If, however, we adopt the second hypothesis we have to inquire\nonly as to the relation between cause and effect. We deal in terms of proximate cause, not of\nnegligence.\nNegligence may be defined roughly as an act or omission which unreasonably does or may affect\nthe rights of others, or which unreasonably fails to protect oneself from the dangers resulting from\nsuch acts. Here I confine myself to the first branch of the definition. Nor do I comment on the word\n\xe2\x80\x9cunreasonable.\xe2\x80\x9d For present purposes it sufficiently describes that average of conduct that society\nrequires of its members\xe2\x80\xa6.\nBut we are told [by one scholar] that there is no negligence unless there is in the particular case\na legal duty to take care, and this duty must be one which is owed to the plaintiff himself and not\nmerely to others. This, I think too narrow a conception. Where there is the unreasonable act, and\nsome right that may be affected there is negligence whether damage does or does not result. That is\nimmaterial. Should we drive down Broadway at a reckless speed, we are negligent whether we strike\nan approaching car or miss it by an inch. The act itself is wrongful. It is a wrong not only to those\nwho happen to be within the radius of danger but to all who might have been there\xe2\x80\x94a wrong to the\npublic at large. Such is the language of the street. Such the language of the courts when speaking of\ncontributory negligence. Such again and again their language in speaking of the duty of some\ndefendant and discussing proximate cause in cases where such a discussion is wholly irrelevant on\nany other theory. As was said by Mr. Justice Holmes many years ago, \xe2\x80\x9cthe measure of the defendant\xe2\x80\x99s\nduty in determining whether a wrong has been committed is one thing, the measure of liability when\na wrong has been committed is another.\xe2\x80\x9d Spade v. Lynn Boston R.R. Co., 52 N.E. 747 (Mass. 1899).\nDue care is a duty imposed on each one of us to protect society from unnecessary danger, not to\nprotect A, B or C alone.\nIt may well be that there is no such thing as negligence in the abstract. \xe2\x80\x9cProof of negligence in\nthe air, so to speak, will not do.\xe2\x80\x9d In an empty world negligence would not exist. It does involve a\nrelationship between man and his fellows. But not merely a relationship between man and those\nwhom he might reasonably expect his act would injure. Rather, a relationship between him and\nthose whom he does in fact injure. If his act has a tendency to harm some one, it harms him a mile\naway as surely as it does those on the scene. We now permit children to recover for the negligent\nkilling of the father. It was never prevented on the theory that no duty was owing to them. A husband\nmay be compensated for the loss of his wife\xe2\x80\x99s services. To say that the wrongdoer was negligent as\nto the husband as well as to the wife is merely an attempt to fit facts to theory. An insurance company\npaying a fire loss recovers its payment of the negligent incendiary. We speak of subrogation\xe2\x80\x94of\nsuing in the right of the insured. Behind the cloud of words is the fact they hide, that the act, wrongful\nas to the insured, has also injured the company. Even if it be true that the fault of father, wife or\ninsured will prevent recovery, it is because we consider the original negligence not the proximate\ncause of the injury.\nIn the well-known Polemis Case, 3 K.B. 560 (1921), Scrutton, L.J., said that the dropping of a\nplank was negligent for it might injure \xe2\x80\x9cworkman or cargo or ship.\xe2\x80\x9d Because of either possibility the\nowner of the vessel was to be made good for his loss. The act being wrongful the doer was liable for\n\n\x0cCASES & CRITIQUE\n\n191\n\nits proximate results. Criticized and explained as this statement may have been, I think it states the\nlaw as it should be and as it is.\nThe proposition is this. Every one owes to the world at large the duty of refraining from those\nacts that may unreasonably threaten the safety of others. Such an act occurs. Not only is he wronged\nto whom harm might reasonably be expected to result, but he also who is in fact injured, even if he\nbe outside what would generally be thought the danger zone. There needs be duty due the one\ncomplaining but this is not a duty to a particular individual because as to him harm might be\nexpected. Harm to some one being the natural result of the act, not only that one alone, but all those\nin fact injured may complain. We have never, I think, held otherwise. Indeed in the Di Caprio case\nwe said that a breach of a general ordinance defining the degree of care to be exercised in one\xe2\x80\x99s\ncalling is evidence of negligence as to every one. We did not limit this statement to those who might\nbe expected to be exposed to danger. Unreasonable risk being taken, its consequences are not\nconfined to those who might probably be hurt.\nIf this be so, we do not have a plaintiff suing by \xe2\x80\x9cderivation or succession.\xe2\x80\x9d Her action is original\nand primary. Her claim is for a breach of duty to herself\xe2\x80\x94not that she is subrogated to any right of\naction of the owner of the parcel or of a passenger standing at the scene of the explosion.\nThe right to recover damages rests on additional considerations. The plaintiff\xe2\x80\x99s rights must be\ninjured, and this injury must be caused by the negligence. We build a dam, but are negligent as to\nits foundations. Breaking, it injures property down stream. We are not liable if all this happened\nbecause of some reason other than the insecure foundation. But when injuries do result from our\nunlawful act we are liable for the consequences. It does not matter that they are unusual, unexpected,\nunforeseen and unforeseeable. But there is one limitation. The damages must be so connected with\nthe negligence that the latter may be said to be the proximate cause of the former.\nThese two words have never been given an inclusive definition. What is a cause in a legal sense,\nstill more what is a proximate cause, depend in each case upon many considerations, as does the\nexistence of negligence itself. Any philosophical doctrine of causation does not help us. A boy throws\na stone into a pond. The ripples spread. The water level rises. The history of that pond is altered to\nall eternity. It will be altered by other causes also. Yet it will be forever the resultant of all causes\ncombined. Each one will have an influence. How great only omniscience can say. You may speak of\na chain, or if you please, a net. An analogy is of little aid. Each cause brings about future events.\nWithout each the future would not be the same. Each is proximate in the sense it is essential. But\nthat is not what we mean by the word. Nor on the other hand do we mean sole cause. There is no\nsuch thing.\nShould analogy be thought helpful, however, I prefer that of a stream. The spring, starting on its\njourney, is joined by tributary after tributary. The river, reaching the ocean, comes from a hundred\nsources. No man may say whence any drop of water is derived. Yet for a time distinction may be\npossible. Into the clear creek, brown swamp water flows from the left. Later, from the right comes\nwater stained by its clay bed. The three may remain for a space, sharply divided. But at last, inevitably\nno trace of separation remains. They are so commingled that all distinction is lost.\nAs we have said, we cannot trace the effect of an act to the end, if end there is. Again, however,\nwe may trace it part of the way. A murder at Sarajevo may be the necessary antecedent to an\nassassination in London twenty years hence. An overturned lantern may burn all Chicago. We may\nfollow the fire from the shed to the last building. We rightly say the fire started by the lantern caused\nits destruction.\nA cause, but not the proximate cause. What we do mean by the word \xe2\x80\x9cproximate\xe2\x80\x9d is, that because\nof convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a\nseries of events beyond a certain point. This is not logic. It is practical politics. Take our rule as to\nfires. Sparks from my burning haystack set on fire my house and my neighbor\xe2\x80\x99s. I may recover from\na negligent railroad. He may not. Yet the wrongful act as directly harmed the one as the other. We\nmay regret that the line was drawn just where it was, but drawn somewhere it had to be. We said the\nact of the railroad was not the proximate cause of our neighbor\xe2\x80\x99s fire. Cause it surely was. The words\nwe used were simply indicative of our notions of public policy. Other courts think differently. But\nsomewhere they reach the point where they cannot say the stream comes from any one source.\n\n\x0c192\n\nTORT LAW\n\nTake the illustration given in an unpublished manuscript by a distinguished and helpful writer\non the law of torts. A chauffeur negligently collides with another car which is filled with dynamite,\nalthough he could not know it. An explosion follows. A, walking on the sidewalk nearby, is killed.\nB, sitting in a window of a building opposite, is cut by flying glass. C, likewise sitting in a window a\nblock away, is similarly injured. And a further illustration. A nursemaid, ten blocks away, startled\nby the noise, involuntarily drops a baby from her arms to the walk. We are told that C may not\nrecover while A may. As to B it is a question for court or jury. We will all agree that the baby might\nnot. Because, we are again told, the chauffeur had no reason to believe his conduct involved any risk\nof injuring either C or the baby. As to them he was not negligent.\nBut the chauffeur, being negligent in risking the collision, his belief that the scope of the harm\nhe might do would be limited is immaterial. His act unreasonably jeopardized the safety of any one\nwho might be affected by it. C\xe2\x80\x99s injury and that of the baby were directly traceable to the collision.\nWithout that, the injury would not have happened. C had the right to sit in his office, secure from\nsuch dangers. The baby was entitled to use the sidewalk with reasonable safety.\nThe true theory is, it seems to me, that the injury to C, if in truth he is to be denied recovery, and\nthe injury to the baby is that their several injuries were not the proximate result of the negligence.\nAnd here not what the chauffeur had reason to believe would be the result of his conduct, but what\nthe prudent would foresee, may have a bearing. May have some bearing, for the problem of\nproximate cause is not to be solved by any one consideration.\nIt is all a question of expediency. There are no fixed rules to govern our judgment. There are\nsimply matters of which we may take account. We have in a somewhat different connection spoken\nof \xe2\x80\x9cthe stream of events.\xe2\x80\x9d We have asked whether that stream was deflected\xe2\x80\x94whether it was forced\ninto new and unexpected channels. This is rather rhetoric than law. There is in truth little to guide\nus other than common sense.\nThere are some hints that may help us. The proximate cause, involved as it may be with many\nother causes, must be, at the least, something without which the event would not happen. The court\nmust ask itself whether there was a natural and continuous sequence between cause and effect. Was\nthe one a substantial factor in producing the other? Was there a direct connection between them,\nwithout too many intervening causes? Is the effect of cause on result not too attenuated? Is the cause\nlikely, in the usual judgment of mankind, to produce the result? Or by the exercise of prudent\nforesight could the result be foreseen? Is the result too remote from the cause, and here we consider\nremoteness in time and space. Clearly we must so consider, for the greater the distance either in time\nor space, the more surely do other causes intervene to affect the result. When a lantern is overturned\nthe firing of a shed is a fairly direct consequence. Many things contribute to the spread of the\nconflagration\xe2\x80\x94the force of the wind, the direction and width of streets, the character of intervening\nstructures, other factors. We draw an uncertain and wavering line, but draw it we must as best we\ncan. Once again, it is all a question of fair judgment, always keeping in mind the fact that we\nendeavor to make a rule in each case that will be practical and in keeping with the general\nunderstanding of mankind.\nHere another question must be answered. In the case supposed it is said, and said correctly, that\nthe chauffeur is liable for the direct effect of the explosion although he had no reason to suppose it\nwould follow a collision. The fact that the injury occurred in a different manner than that which\nmight have been expected does not prevent the chauffeur\xe2\x80\x99s negligence from being in law the cause\nof the injury. But the natural results of a negligent act\xe2\x80\x94the results which a prudent man would or\nshould foresee\xe2\x80\x94do have a bearing upon the decision as to proximate cause. We have said so\nrepeatedly. What should be foreseen? No human foresight would suggest that a collision itself might\ninjure one a block away. On the contrary, given an explosion, such a possibility might be reasonably\nexpected. I think the direct connection, the foresight of which the courts speak, assumes prevision\nof the explosion, for the immediate results of which, at least, the chauffeur is responsible.\nIt may be said this is unjust. Why? In fairness he should make good every injury flowing from\nhis negligence. Not because of tenderness toward him we say he need not answer for all that follows\nhis wrong. We look back to the catastrophe, the fire kindled by the spark, or the explosion. We trace\nthe consequences\xe2\x80\x94not indefinitely, but to a certain point. And to aid us in fixing that point we ask\nwhat might ordinarily be expected to follow the fire or the explosion.\n\n\x0cCASES & CRITIQUE\n\n193\n\nThis last suggestion is the factor which must determine the case before us. The act upon which\ndefendant\xe2\x80\x99s liability rests is knocking an apparently harmless package onto the platform. The act\nwas negligent. For its proximate consequences the defendant is liable. If its contents were broken, to\nthe owner; if it fell upon and crushed a passenger\xe2\x80\x99s foot, then to him. If it exploded and injured one\nin the immediate vicinity, to him also as to A in the illustration. Mrs. Palsgraf was standing some\ndistance away. How far cannot be told from the record\xe2\x80\x94apparently twenty-five or thirty feet.\nPerhaps less. Except for the explosion, she would not have been injured. We are told by the appellant\nin his brief \xe2\x80\x9cit cannot be denied that the explosion was the direct cause of the plaintiff\xe2\x80\x99s injuries.\xe2\x80\x9d So\nit was a substantial factor in producing the result\xe2\x80\x94there was here a natural and continuous\nsequence\xe2\x80\x94direct connection. The only intervening cause was that instead of blowing her to the\nground the concussion smashed the weighing machine which in turn fell upon her. There was no\nremoteness in time, little in space. And surely, given such an explosion as here it needed no great\nforesight to predict that the natural result would be to injure one on the platform at no greater\ndistance from its scene than was the plaintiff. Just how no one might be able to predict. Whether by\nflying fragments, by broken glass, by wreckage of machines or structures no one could say. But injury\nin some form was most probable.\nUnder these circumstances I cannot say as a matter of law that the plaintiff\xe2\x80\x99s injuries were not\nthe proximate result of the negligence. That is all we have before us. The court refused to so charge.\nNo request was made to submit the matter to the jury as a question of fact, even would that have\nbeen proper upon the record before us. The judgment appealed from should be affirmed, with costs.\n1.\n\nQUESTIONS\nAligning the Elements: Which element of negligence does Judge Cardozo (left) believe\nis central to this case? Is he concerned about proximate cause? Or does he conclude that\nsomething else is amiss with Mrs. Palsgraf\xe2\x80\x99s claim? Does Judge Andrews (right) agree?\n\n2.\n\nMinimum Outcome Changer: If you could pick just two facts that were crucial to Judge\nCardozo\xe2\x80\x99s decision, what would they be? Put differently, which two facts could you\nchange just a little to cure the deficiency he perceives with Mrs. Palsgraf\xe2\x80\x99s claim?\n\n3.\n\nProximity and Pragmatism: What does Judge Andrews mean when he talks about\n\xe2\x80\x9cpractical politics\xe2\x80\x9d? How does he think pragmatism should affect negligence liability?\n\n\x0c194\n\nTORT LAW\n\nThe following case discusses sexual assault.\nFAST EDDIE\xe2\x80\x99S v. HALL\nCourt of Appeals of Indiana (1997)\nBaker, Judge:\n\n\xc3\xa3\n\nAppellant-defendant Fast Eddie\xe2\x80\x99s\xe2\x80\xa6appeals the\ntrial court\xe2\x80\x99s denial of its motions for summary\njudgment on a complaint filed by the plaintiffappellee Judy Hall, as executor of the estate of Teresa\nHall (Estate). Teresa Hall died after one of Fast\nEddie\xe2\x80\x99s patrons shot and killed her. On appeal, Fast\nEddie\xe2\x80\x99s argues that it did not owe Hall a common law\nduty to protect her from another patron\xe2\x80\x99s unexpected\ncriminal acts of sexual assault and murder.\nAdditionally, Fast Eddie\xe2\x80\x99s argues that its actions were not the proximate cause of Hall\xe2\x80\x99s death\xe2\x80\xa6.\n[O]n the evening of June 4, 1993, Teresa Hall, Michael Lamb and John Schooley were patrons at\nFast Eddie\xe2\x80\x99s. Schooley and Lamb arrived together around 7:00 p.m. and began to consume alcoholic\nbeverages. Sometime later in the evening, Hall arrived at the tavern and began to drink and socialize\nwith Schooley. At one point in the evening, after Schooley stepped outside the bar for moment,\nLamb began to make advances toward Hall. At about the same time, the on-duty manager, Rita\nStephens, noticed that Hall had become heavily intoxicated and was having difficulty sitting up on\nher bar stool. As a result, Stephens asked Lamb to take Hall out of the tavern. Lamb did as Stephens\nrequested and escorted Hall to Schooley\xe2\x80\x99s car and returned to the bar. Schooley then drove Hall to\nhis trailer in Terre Haute. After they arrived, Hall passed out in the passenger\xe2\x80\x99s seat of Schooley\xe2\x80\x99s\ncar. Schooley then went inside his trailer and passed out on the couch.\nShortly thereafter, Lamb purchased a six-pack of beer from the tavern and drove to his home.\nAfter discovering that his wife was not there, he drove to Schooley\xe2\x80\x99s trailer. As he approached the\ntrailer, he noticed Hall passed out in the passenger\xe2\x80\x99s seat of Schooley\xe2\x80\x99s car. Lamb removed Hall\xe2\x80\x99s\nbody and placed her in his car. He then drove to the Riley Conservation Club where he shot Hall in\nthe abdomen and head, killing her. When Hall\xe2\x80\x99s body was found, her blood alcohol was .23%, her\nskirt was twisted over her hips and her breasts were partially exposed. Lamb later confessed to killing\nHall and pled guilty to her murder.\nOn September 30, 1994, Judy Hall, as administrator of the Estate of Teresa Hall, filed a complaint\nagainst Fast Eddie\xe2\x80\x99s alleging that it was negligent per se for violating Indiana\xe2\x80\x99s Dram Shop Act, by\nserving Lamb and Hall alcoholic beverages when they were visibly intoxicated. The Estate further\nargued that Fast Eddie\xe2\x80\x99s breached its common law duty of care to provide for Hall\xe2\x80\x99s safety by failing\nto protect her from Lamb\xe2\x80\x99s criminal acts of sexual assault and murder.\nIn response, Fast Eddie\xe2\x80\x99s filed a motion for summary judgment in which it argued that it did not\nviolate the Dram Shop Act because it did not serve Lamb or Hall any alcohol on the night of Hall\xe2\x80\x99s\nmurder. It further argued that even if Lamb was served, he was not visibly intoxicated. Additionally,\nFast Eddie\xe2\x80\x99s argued that it did not owe Hall a common law duty to protect her from Lamb\xe2\x80\x99s\nunforeseeable criminal acts of sexual assault and murder because they were not reasonably\nforeseeable. The trial court, however, denied the motion.\nThereafter, on May 30, 1996, Fast Eddie\xe2\x80\x99s filed a second motion for summary judgment in which\nit argued that its alleged act of serving Lamb and Hall in violation of the Dram Shop Act was not the\nproximate cause of Hall\xe2\x80\x99s death. Specifically, it argued that sexual assault and murder were not the\nnatural and probable consequences of Lamb\xe2\x80\x99s alleged intoxication. The trial court, again, denied\nFast Eddie\xe2\x80\x99s motion. Thereafter, the trial court certified both of Fast Eddie\xe2\x80\x99s motions for summary\njudgment for interlocutory appeal\xe2\x80\xa6and this court accepted jurisdiction on February 7, 1997.\nFast Eddie\xe2\x80\x99s contends that the trial court erroneously denied its motions for summary judgment.\nSpecifically, it argues that it did not have a common law duty to protect Hall from Lamb\xe2\x80\x99s\n\xc3\xa3\n\nTim Vrtiska, Dive Bar (CC BY-ND 2.0).\n\n\x0cCASES & CRITIQUE\n\n195\n\nunforeseeable criminal acts of sexual assault and murder. Alternatively, it argues that it did not\ngratuitously assume a common law duty to protect Hall from Lamb by asking Lamb to remove Hall\nfrom the tavern. Finally, Fast Eddie\xe2\x80\x99s argues that its alleged violation of Indiana\xe2\x80\x99s Dram Shop Act\nwas not the proximate cause of Hall\xe2\x80\x99s death\xe2\x80\xa6.\nI. Fast Eddie\xe2\x80\x99s Common Law Duty\nFirst we address Fast Eddie\xe2\x80\x99s contention that it did not owe Hall a common law duty to protect\nher from Lamb\xe2\x80\x99s criminal acts of sexual assault and murder. In order for a plaintiff to prevail on a\nclaim for negligence, she must show that: (1) the defendant owed her a duty to exercise reasonable\ncare; (2) the defendant breached that duty by failing to conform its conduct to the requisite standard\nof care; and (3) the plaintiff sustained injuries which were the proximate cause of the defendant\xe2\x80\x99s\nbreach. However, absent a duty, there can be no negligence.\nThis court has previously held that a proprietor of a tavern owes its patrons a duty to exercise\nreasonable care to protect them from the foreseeable acts of other patrons. However, a proprietor of\na tavern is not required to protect its patrons from unexpected criminal acts unless particular facts\nmake it reasonably foreseeable that the criminal act will occur. These include the prior actions of the\nassailant either on the day the act occurred or on a previous occasion. However, a criminal act is not\nforeseeable merely because a patron was served beyond the point of intoxication\xe2\x80\xa6.\n[T]he Estate offered evidence that Fast Eddies was a \xe2\x80\x9crun down[,] kind of dirty\xe2\x80\x9d tavern with a\nreputation for fighting, theft and accidents. It also submitted evidence that Lamb and Hall consumed\nlarge amounts of alcohol on the night of Hall\xe2\x80\x99s murder and that Hall became physically helpless due\nto her intoxicated state. Additionally, the Estate submitted evidence that Lamb made advances\ntoward Hall shortly before Schooley took her home and that Rona Slater, a waitress at Fast Eddie\xe2\x80\x99s,\nhad personal knowledge that Lamb\xe2\x80\x99s \xe2\x80\x9csexual drive increased\xe2\x80\x9d when he became intoxicated. Finally,\nthe Estate offered evidence that one or more of the bartenders on duty that evening had knowledge\nthat Lamb carried a gun.\nEven accepting all of the Estate\xe2\x80\x99s evidence as true, none of it demonstrates that Lamb\xe2\x80\x99s sexual\nassault and murder of Hall were foreseeable. First, it does not follow that because Lamb\xe2\x80\x99s sexual\ndrive increased when he was intoxicated and that he showed an interest in Hall, he would\nintentionally harm Hall absent some evidence which would show his propensity for sexual assault\nor murder. It also does not follow that because Fast Eddie\xe2\x80\x99s had a reputation for violence, that every\npatron, including Lamb, is violent. Further, even if fighting had occurred at the tavern in the past,\nthe Estate offered no evidence that Lamb had been involved in any of the prior altercations. Finally,\nHall\xe2\x80\x99s death was not foreseeable merely because Lamb carried a gun. Therefore, the evidence most\nfavorable to Hall supports Fast Eddie\xe2\x80\x99s contention that it had no knowledge of Lamb\xe2\x80\x99s propensity to\ncommit sexual assault or murder. As a result, Fast Eddie\xe2\x80\x99s had no duty to protect Hall from Lamb\xe2\x80\x99s\nintentional criminal acts. See L.W. v. Western Golf Ass\xe2\x80\x99n, 675 N.E.2d 760 (Ind. Ct. App.\n1997) (foundation could not have reasonably foreseen that male scholarship recipient would rape\nfemale recipient in foundation\xe2\x80\x99s coed house where recipients were required to live, because it had\nno knowledge that male recipient had propensity for violence or sexual assault).\nII. Assumption of a Duty\n\xe2\x80\xa6A duty of care may be created by gratuitous or voluntary assumption\xe2\x80\xa6. [T]he Estate contends\nthat the manager\xe2\x80\x99s act of telling Lamb to take Hall out of the tavern, evidences Fast Eddie\xe2\x80\x99s intent to\nassume a duty to provide for Hall\xe2\x80\x99s safety\xe2\x80\xa6. Here, Fast Eddie\xe2\x80\x99s only action was to order Lamb to\ntake Hall out of the tavern. However, this act is not an affirmative step to provide for Hall\xe2\x80\x99s safety.\nWithout some affirmative action on the part of a tavern owner or its employees to provide for its\npatron\xe2\x80\x99s safety, we refuse to impute a duty. Were we to do otherwise, we would, in essence, require\ntavern owners to be the guarantors of each departing patron\xe2\x80\x99s safety, which we refuse to do\xe2\x80\xa6.\nIII. Proximate Cause of Hall\xe2\x80\x99s Assault and Murder\nFinally, Fast Eddie\xe2\x80\x99s argues that the trial court erroneously denied its motion for summary\njudgment because its alleged violation of the Dram Shop Act was not the proximate cause of Hall\xe2\x80\x99s\nsexual assault and death. According to the Dram Shop Act, a provider of alcoholic beverages is not\nliable in a civil action unless:\n\n\x0c196\n\nTORT LAW\n\n(1) the person furnishing the alcoholic beverage had actual knowledge that the\nperson to whom the alcoholic beverage was furnished was visibly intoxicated at\nthe time the alcoholic beverage was furnished; and,\n(2) the intoxication of the person to whom the alcoholic beverage was furnished\nwas a proximate cause of the death, injury, or damage alleged in the complaint.\nThus, even though a proprietor may have a statutory duty to refrain from providing alcoholic\nbeverages to intoxicated persons, it will not be liable unless the alleged violation is the proximate\ncause of a patron\xe2\x80\x99s death or injury.\nProximate cause is the limitation which courts have placed on the actor\xe2\x80\x99s responsibility for the\nconsequences of his act or failure to act. A party\xe2\x80\x99s act is the proximate cause of an injury if it is the\nnatural and probable consequence of the act and should have been reasonably foreseen and\nanticipated in light of the circumstances. However, a willful, malicious criminal act of a third party\nis an intervening act which breaks the causal chain between the alleged negligence and the resulting\nharm. Although proximate cause is generally a question of fact, it becomes a question of law where\nonly a single conclusion can be drawn from the facts.\nHere, even assuming Fast Eddie\xe2\x80\x99s breached its statutory duty under the Dram Shop Act, its\nbreach was not the proximate cause of Hall\xe2\x80\x99s sexual assault and death. First, the chain of causation\nin the instant case is extremely tenuous. Although Lamb initially escorted Hall out of the tavern, he\nreturned to the bar after Schooley drove Hall to his trailer. It was later in the evening, however, when\nLamb left the tavern, returned home to discover his wife\xe2\x80\x99s absence, decided to proceed to Schooley\xe2\x80\x99s\nhome, found Hall passed out in Schooley\xe2\x80\x99s car and killed her. The tavern could not have reasonably\nforeseen this series of events which culminated in Hall\xe2\x80\x99s unfortunate death. Additionally, even if the\nchain of causation were stronger, Lamb\xe2\x80\x99s intentional criminal acts were the intervening cause of\nHall\xe2\x80\x99s death which broke the causal chain between Fast Eddie\xe2\x80\x99s negligence and Hall\xe2\x80\x99s sexual assault\nand death. Therefore, Fast Eddie\xe2\x80\x99s alleged violation of the statute was not the proximate cause of\nHall\xe2\x80\x99s sexual assault and death.\nFinally, we reject the Estate\xe2\x80\x99s contention that Lamb\xe2\x80\x99s intoxication was the proximate cause of\nHall\xe2\x80\x99s death. In support of its contention, the Estate submitted Lamb\xe2\x80\x99s deposition testimony that his\nintoxication caused him to shoot Hall. The Estate concludes that this evidence creates a genuine\nissue of material fact regarding the proximate cause of Hall\xe2\x80\x99s death. We disagree.\nUnlike automobile accidents which occur as the result of alcoholic beverage consumption,\nassault and murder are intentional acts of volition which are the result of an assailant\xe2\x80\x99s deliberate\ndesign. Here, Hall died because Lamb deliberately decided to kill her. This criminal intent would\nhave been present whether or not Lamb was intoxicated. Thus, despite Lamb\xe2\x80\x99s contention, we find\nas a matter of law that Hall\xe2\x80\x99s death was the result of Lamb\xe2\x80\x99s deliberate design and volitional act and\nnot his intoxication\xe2\x80\xa6. The trial court\xe2\x80\x99s denial of summary judgment is reversed.\n1.\n\nQUESTIONS\nMussivand Revisited: In the earlier case of Mussivand v. David, could Dr. David have\nargued that Dr. West\xe2\x80\x99s intentional act (having sex with Dr. Mussivand) was an\nintervening cause that \xe2\x80\x9cbroke the causal chain\xe2\x80\x9d between David\xe2\x80\x99s negligence and\nMussivand\xe2\x80\x99s infection? Are these cases analogous or would you distinguish them?\n\n2.\n\nBaker Revisited: Notice the distinct points that Hall\xe2\x80\x99s estate unsuccessfully makes in\narguing that Fast Eddie\xe2\x80\x99s owed an affirmative duty to protect. Why do they fail? How is\nwhat happened to Hall in Fast Eddie\xe2\x80\x99s different from what happened to Baker in Taco Bell?\n\n3.\n\nOn or Off the Hook: The Restatement (Third) of Torts rejects the doctrine of intervening\ncause (sometimes called \xe2\x80\x9csuperseding cause\xe2\x80\x9d), relying instead on rules of apportionment.\nUnder these rules, when a third party\xe2\x80\x99s intervening act makes them substantially more\nculpable than the defendant, the defendant will be liable for a smaller share of the\nplaintiff\xe2\x80\x99s damages. What distinguishes this regime from the rule applied in Fast Eddie\xe2\x80\x99s?\n\n\x0cCASES & CRITIQUE\n\n197\n\nTARGET PRACTICE PROBLEM\nCameron and Xavier, both eighteen-year-old high-school seniors, are staying at Cameron\xe2\x80\x99s\nfamily cabin for the weekend. On Saturday night, the pair decided to dip into Cameron\xe2\x80\x99s parents\xe2\x80\x99\nalcohol stash in the basement. After enjoying a few beers, they decide it would be fun to shoot their\nempty cans off of the dock. Both Cameron and Xavier had been hunting with their families since\nthey were kids, and they often shot at cans for target practice while they were at the cabin. They\nassembled their cans, got their rifles from the safe, and took turns shooting cans at the end of the\ndock. They were having a great time until Cameron shot at her last can, and the bullet ricocheted off\nof the boat beside the dock and then hit Xavier\xe2\x80\x99s foot. In the chaos that followed, Cameron\xe2\x80\x99s rifle\nslid off the dock and into the lake. Luckily, Xavier survived with minimal long-term injuries, but his\nfamily wants to sue Cameron for negligence to cover his hospital fees.\nTwo years later, a group of kids was swimming in the lake when nine-year-old Uri found the\nlong-abandoned rifle. Excited to show his dad what he\xe2\x80\x99d found, Uri ran out of the water carrying\nthe rifle. He tripped and fell, and the gun went off. The bullet caught Uri\xe2\x80\x99s dad in the leg, and he\nsuffered serious injuries that mean he\xe2\x80\x99ll forever walk with a limp. Uri\xe2\x80\x99s family discovers the gun\nbelonged to Cameron and wants to hold her liable for negligently leaving a loaded gun in the lake.\n(a) Is Cameron liable for negligence in both cases? If not, what makes Xavier\xe2\x80\x99s case different\nfrom Uri\xe2\x80\x99s dad\xe2\x80\x99s case? Did Cameron play an equal role in causing both injuries?\n(b) Should Cameron\xe2\x80\x99s parents be worried about facing any liability?\n\nE. Negligence Per Se\nDALAL v. CITY OF NEW YORK\nSupreme Court of the State of New York, Appellate Division (1999)\nPer Curiam:\n\n\xc3\xa3\n\nThe instant action arises out of an automobile\naccident that occurred at the intersection of Booth\nStreet and 66th Avenue in Queens. The action against\nthe defendant City of New York was discontinued\nprior to trial. At trial, the plaintiff testified that he\nstopped at the stop sign controlling traffic on 66th\nAvenue, and looked both ways for a distance of about\none block, without seeing anything, before he\nproceeded into the intersection. When he was about\nhalfway through the intersection, his vehicle was\nstruck on the driver\xe2\x80\x99s side by a vehicle operated by Alicia Ramdhani-Mack (hereinafter the defendant).\nThe plaintiff further testified that he never saw the defendant\xe2\x80\x99s car until impact. The defendant testified\nthat she was about 10 to 15 feet away from the intersection when she noticed the plaintiff\xe2\x80\x99s vehicle,\nwhich was about 14 feet behind the stop sign but moving, and that about 5 to 7 seconds elapsed from\nthe time that she observed the plaintiff\xe2\x80\x99s vehicle until the collision. She stated that she attempted to\nswerve out of the way, but could not avoid the collision. The defendant further testified that although\nshe was nearsighted and required prescription glasses, she was not wearing her glasses at the time of\nthe accident. She claimed she was still able to see while driving. There was no evidence that either driver\nwas speeding. The jury returned a verdict finding that only the plaintiff was negligent, and that his\nnegligence was the sole proximate cause of the accident.\nThe plaintiff contends that the trial court erred in refusing to charge that the defendant\xe2\x80\x99s\nviolation of Vehicle and Traffic Law \xc2\xa7 509(3) was negligence per se, and erred in refusing to allow\nhim to cross-examine the defendant on that issue. Vehicle and Traffic Law \xc2\xa7 509(3) provides that\n\xe2\x80\x9cno person shall operate any motor vehicle in violation of any restriction contained on his license\xe2\x80\x9d.\n\n\xc3\xa3\n\nVersageek, Crunch! (CC BY-SA 2.0).\n\n\x0c198\n\nTORT LAW\n\nThe defendant testified at her examination before trial that her New York State driver\xe2\x80\x99s license\ncontained a restriction requiring her to wear corrective lenses while driving.\nIt is well established that an unexcused violation of a statutory standard of care, if unexplained,\nconstitutes negligence per se. The defendant\xe2\x80\x99s reliance upon the principle that operating a motor\nvehicle without a license is not negligence per se is misplaced. The absence or possession of a driver\xe2\x80\x99s\nlicense relates only to the authority for operating the vehicle and not to the manner\nthereof. However, a restriction placed upon the license requiring the wearing of glasses when driving\nrelates directly to the actual operation of the vehicle. Vehicle and Traffic Law \xc2\xa7 509(3) provides that\nno one shall operate a vehicle in violation of any restriction contained on his or her license, and also\nrelates to the manner in which the vehicle is being operated. Thus, the statute sets up a standard of\ncare, the unexcused violation of which is negligence per se. The trial court erred, therefore, in\nrefusing the plaintiffs request to charge\xe2\x80\xa6. The plaintiff is therefore entitled to a new trial.\n1.\n\nQUESTIONS\nLawbreaking and Lawmaking: What\xe2\x80\x99s the significance of Ramdhani-Mack\xe2\x80\x99s violation of\n\xc2\xa7 509(3)? Which element of negligence does it affect? And what effect does it have? Does\nit mean that Dalal wins his negligence claim?\n\n2.\n\nBrown-Eyed Girl: Would Dalal be entitled to an instruction on negligence per se if\nRamdhani-Mack had lied about her eye color when applying for her driver\xe2\x80\x99s license?\nWould it matter whether there was a provision of New York\xe2\x80\x99s Vehicle and Traffic Law\nthat penalized people for putting false information on their applications?\n\n3.\n\nNegligence Por Que? Why does the doctrine of negligence per se exist? What values does\nit serve? What benefits or drawbacks does it have?\nBAYNE v. TODD SHIPYARDS CORP.\nSupreme Court of Wisconsin (1977)\n\nBrachtenbach, Justice:\n\n\xc3\xa3\n\nPlaintiff sued for personal injuries sustained\nwhile unloading goods being delivered to\ndefendant\xe2\x80\x99s premises. Plaintiff was not an employee\nof the defendant, but rather of the trucking company\nengaged in the delivery. While unloading those\ngoods, plaintiff fell from a loading platform. Plaintiff\ncontended that the defendant\xe2\x80\x99s loading platform\nlacked a guardrail required by a safety standard\nregulation promulgated by the Department of Labor\nand Industries, pursuant to statute. The trial court\nrefused to instruct that violation of that administrative regulation was negligence per se, but did\ninstruct that it was evidence of negligence\xe2\x80\xa6. [T]he Court of Appeals affirmed a judgment for the\ndefendant\xe2\x80\xa6. We granted review limited to the sole issue whether violation of an administrative safety\nregulation is negligence per se or only evidence of negligence. We reverse.\nThe statute in effect at the time of the injury imposed a duty upon the Director of Labor and\nIndustries to promulgate safety regulations to furnish workers a place of work which is as safe as is\nreasonable and practicable under the circumstances, surroundings and conditions\xe2\x80\xa6. Pursuant to\nthis authority, the Director of Labor and Industries adopted WAC 296-25-515:\n(1) All elevated walks, runways or platforms, except on loading or unloading sides\nof platforms, if four feet or more from the floor level, shall be provided with a\nstandard railing on platforms. If height exceeds six feet, a toe-board shall be\nprovided, to prevent material from rolling or falling off.\n\n\xc3\xa3\n\nDiane Gregg, Sealtest Loading Dock Worker (CC BY 2.0).\n\n\x0cCASES & CRITIQUE\n\n199\n\nWe have long been committed to the principle that violation of an applicable statute or ordinance\nis negligence per se. This is the majority rule. However, the courts are divided on the question whether\nviolation of an administrative regulation is evidence of negligence or negligence per se.\nBy our decision in Kness v. Truck Trailer Equip. Co., 501 P.2d 285 (Wash. 1972), we already have\naligned ourselves with those jurisdictions which hold that under appropriate circumstances\nviolation of an administrative order is negligence per se. In Kness a regulation had been adopted\nlimiting the hours of work for a minor. The regulation was based on a rather broad statute\nauthorizing the administrative establishment of standards of wages and conditions of labor for\nwomen and minors. In holding violation of the regulation was negligence per se we said:\nIn deciding whether violation of a public law or regulation shall be considered in\ndetermining liability, the Restatement (Second) of Torts \xc2\xa7 286 (1965) properly\nstates the rules:\nThe court may adopt as the standard of conduct of a reasonable man the\nrequirements of a legislative enactment or an administrative regulation whose\npurpose is found to be exclusively or in part\n(a) to protect a class of persons which includes the one whose interest is invaded, and\n(b) to protect the particular interest which is invaded, and\n(c) to protect that interest against the kind of harm which has resulted, and\n(d) to protect that interest against the particular hazard from which the harm results.\nThis court has substantially adhered to these principles in a number of cases.\nIn this case we had a somewhat more specific statutory directive to adopt standards of safety to\nmake safe the place of work of workmen\xe2\x80\xa6. We perceive no reason why such a regulation should be\nof any less force, effect or significance than a municipal ordinance\xe2\x80\xa6.\nDefendant contends that plaintiff was not within the protected class because he was not an\nemployee of the defendant. The statute requires a safe place of work for workmen. It does not limit\nit to employees of the defendant employer. A worker who is lawfully on the premises in pursuit of\nhis own employment and at the invitation of the third party, defendant here, is entitled to the benefit\nof the statute and the regulation. See Pierson v. Holly Sugar Corp., 237 P.2d 28 (Cal. Ct. App. 1951),\nwhich so holds, stating that the regulation was a safeguard for the public generally which necessarily\nincluded a workman making a delivery who was not an employee of the defendant. Extension of the\nprotection of the regulation to the public generally is not before us\xe2\x80\xa6.\nThe judgment is reversed and a new trial ordered.\nHicks, Justice, dissenting:\nI dissent. Administrative agencies have a penchant for spawning regulations without end. As a\nMember of Congress, I served on a subcommittee that had occasion to evaluate regulations\npromulgated under the Occupational Safety and Health Act (OSHA). While these regulations were\ngenerally most appropriate, they were unnecessary, impractical or picayunish (Mickey Mouse) often\nenough to give me concern as to making violation of any one of them negligence per se in every\ninstance in a damage action.\nThe court is setting policy in this case and I have no quarrel with that. However, I am more\ncomfortable with the rule that violation of administrative regulations be submitted to the trier of\nfact as evidence of negligence, as the trial court did in this case, rather than to be submitted as\nnegligence as a matter of law. In my view, when violations of regulations are submitted as evidence\nof negligence, the trier of fact has a better opportunity to use common sense and reach a more nearly\njust result between the parties.\nUntil this case, the state of the law in this jurisdiction did not compel the result the majority\nreaches\xe2\x80\xa6. In the instant case, [the regulations] do no more than provide an administratively\napproved standard of safety. By the fiat of this court, the violation of such administratively\npromulgated standard now becomes negligence as a matter of law in every instance in a damage\naction. I believe the better course to be to\xe2\x80\xa6submit the regulation to the trier of fact only as evidence\nof an approved standard, as the trial court did in this case\xe2\x80\xa6.\n\n\x0c200\n\nTORT LAW\n\n1.\n\nQUESTIONS\nWho Cares? Todd Shipyards doesn\xe2\x80\x99t dispute that it violated the regulation, so why is it\nstill arguing that negligence per se doesn\xe2\x80\x99t apply? Even if it didn\xe2\x80\x99t apply, could Bayne still\npoint to the regulatory violation in making his case?\n\n2.\n\nSteamboat Willie: Why does Justice Hicks bring up Mickey Mouse in his dissent? What\ndoes it have to do with the doctrine of negligence per se?\n\n3.\n\nHooky: Suppose Bayne\xe2\x80\x99s daughter leaves school early and makes the rounds with him at\nwork. She falls from the loading platform. Negligence per se?\nVICTOR v. HEDGES\nCalifornia Court of Appeal (1999)\n\nDau, Justice:\n\n\xc3\xa3\n\nPlaintiff Stephani Victor appeals from the judgment\nentered in favor of defendants Michael Hedges and\nThermtech, Inc. (collectively, \xe2\x80\x9cHedges\xe2\x80\x9d), following the\ngrant of defendants\xe2\x80\x99 motion for summary judgment, and\nfrom the denial of her motion for new trial. Michael\nHedges parked his auto on the sidewalk in front of his\napartment building. Plaintiff and Hedges were standing on\nthe sidewalk behind the car, when an inattentive motorist\ndrove over the curb and into plaintiff, seriously injuring\nher. We are required to decide whether a statute\nprohibiting the parking of a vehicle on a sidewalk may be employed to fix upon Hedges the\npresumption of negligence in the circumstances of this case and whether reasonable people could\nconclude that he subjected plaintiff to an unreasonable risk of harm. We hold the statute in question\nwas not designed to prevent the type of occurrence that resulted in plaintiffs injury, and plaintiff has\nfailed to raise a triable issue of fact that an ordinarily prudent person in Hedges\xe2\x80\x99s place would have\nforeseen an unreasonable risk of harm to plaintiff. Accordingly, we affirm.\nPlaintiff brought an action for damages alleging that\xe2\x80\xa6defendant Thermtech owned a certain\nFord Explorer and defendant Hedges was driving that vehicle with the owner\xe2\x80\x99s consent, that\ndefendant Mark Williams was driving a Ford Aerostar van, and that defendants negligently operated\nand controlled these vehicles so as to cause a collision with plaintiff, who was lawfully upon the\nsidewalk in the City of Hermosa Beach.\nThe undisputed facts showed that at approximately 10:00 p.m. Hedges had parked his Ford\nExplorer on the sidewalk in front of his apartment building, parallel to, and with the driver\xe2\x80\x99s side\ntires three to four feet from, the curb line of Hermosa Avenue in Hermosa Beach. Hedges did this\nto show plaintiff his new compact disk player, which was located in the rear of the Explorer. Due to\nconstruction, northbound traffic along Hermosa Avenue was routed into a single lane along the east\ncurb. There was some gravel on the road, and the surface was rough with bumps and potholes.\nImmediately before the accident Williams was northbound on Hermosa Avenue, approaching the\nintersection with First Street, in his Aerostar van. He looked down at the tape deck and, with his\nright hand, fast forwarded a cassette for approximately two seconds. The steering wheel jostled about\nan inch each way, Williams\xe2\x80\x99s van drifted to the right, and the front and rear passenger side tires hit\nthe First Street curb, causing them to blow out; the van continued in its path. Hedges and plaintiff\nwere standing at the rear of the Explorer, with plaintiff nearer the curb and Hedges to her right,\nwhen Williams\xe2\x80\x99s van ran into plaintiff and the Explorer about 30 feet from the First Street curb\xe2\x80\xa6.\nPlaintiff\xe2\x80\x99s claim against Hedges and Thermtech is based on theories of negligence per se and\ncommon law negligence. Defendants argued in the court below that a necessary element of plaintiffs\ncase under either theory\xe2\x80\x94proximate cause\xe2\x80\x94could not be established\xe2\x80\xa6. [W]e will address the\nnegligence per se issue before coming to that of ordinary negligence. We do this, even though the\n\xc3\xa3\n\nArio, Car Crash Outside Real (CC BY-NC-SA 2.0).\n\n\x0cCASES & CRITIQUE\n\n201\n\nproximate cause argument (which is focused on foreseeability) made by the parties is common to\nboth, for the following reason: If Hedges is not to be presumed negligent, and we will conclude that\nhe is not, the ordinary negligence analysis may proceed uncontaminated by the infraction charge\xe2\x80\xa6.\nPlaintiff argues that Hedges must be presumed negligent because he violated Vehicle Code\nsection 22500, subdivision (f), which prohibits parking on a sidewalk.\nSection 669, subdivision (a) of the Evidence Code provides: \xe2\x80\x9cThe failure of a person to exercise\ndue care is presumed if: (1) He violated a statute (2) The violation proximately caused death or\ninjury to person or property; (3) The death or injury resulted from an occurrence of the nature which\nthe statute was designed to prevent; and (4) The person suffering the death or the injury to his\nperson or property was one of the class of persons for whose protection the statute was adopted.\xe2\x80\x9d\nWith respect to paragraphs (3) and (4), the Law Revision Commission Comments state: \xe2\x80\x9cWhether\nthe death or injury involved in an action resulted from an occurrence of the nature which the\nstatute was designed to prevent and whether the plaintiff was one of the class of persons for whose\nprotection the statute was adopted are questions of law.\nAt the time of the accident, section 22500 provided: \xe2\x80\x9cNo person shall stop, park, or leave standing\nany vehicle whether attended or unattended, except when necessary to avoid conflict with other\ntraffic or in compliance with the directions of a peace officer or official traffic control device, in any\nof the following places:\xe2\x80\xa6(f) On a sidewalk, except electric carts when authorized by local ordinance,\nas specified in Section 21114.5.\xe2\x80\x9d We are required to determine the nature of the occurrence that\nsection 22500, subdivision (f) was designed to prevent\xe2\x80\xa6.\nSection 22500 designates twelve categories of locations where stopping, standing or parking a\nvehicle is prohibited. The Legislature specified certain of these with pedestrians obviously in mind.\n\xe2\x80\x9cOn a sidewalk,\xe2\x80\x9d which the Code defines as \xe2\x80\x9cthat portion of a highway, other than the roadway, set\napart by curbs, barriers, markings or other delineation for pedestrian travel,\xe2\x80\x9d is one of these. Others\nare: \xe2\x80\x9con a crosswalk\xe2\x80\x9d; \xe2\x80\x9cbetween a safety zone and the adjacent right-hand curb\xe2\x80\x9d; \xe2\x80\x9calongside curb\nspace authorized for the loading and unloading of passengers of a bus engaged as a common carrier\nin local transportation\xe2\x80\x9d; and \xe2\x80\x9cin front of that portion of a curb that has been cut down, lowered, or\nconstructed to provide wheelchair accessibility to the sidewalk.\xe2\x80\x9d With the exception of \xe2\x80\x9con a\nsidewalk,\xe2\x80\x9d vehicles normally operate within each of these designated categories, and, for these, the\nsection\xe2\x80\x99s prohibition appears designed both to prevent vehicular obstruction of pedestrian traffic\nand to lessen the danger of vehicle-pedestrian collision. Thus pedestrians finding it necessary to walk\naround a vehicle that is illegally parked, stopped or left standing may be put at increased risk of\ninjury from unsure footing, from another vehicle in the roadway, or from the sudden movement of\nthe vehicle that had been at rest. Hedges\xe2\x80\x99s parked automobile did not obstruct plaintiffs way and\nincrease her risk of injury in this fashion.\nInjury to a pedestrian on a sidewalk, resulting from contact with a vehicle that has been parked,\nstopped or left standing there, can also occur when the vehicle is at rest or when it is again put in\nmotion. The Legislature\xe2\x80\x99s 1998 amendment to subdivision (f) appears to reflect an awareness that a\nvehicle at rest, even if partially on the sidewalk, can cause injury to a passing pedestrian. In this\nsituation, the pedestrian, insufficiently aware of the presence of the vehicle, walks into it, or a portion\nof it, and is injured. That is not what occurred in the case at bar. Here, plaintiff was inspecting the\nExplorer\xe2\x80\x99s compact disk player when she was struck by another vehicle, which ran into her and the\nExplorer.\nWe conclude that subdivision (f) of section 22500 was designed to prevent (1) vehicular\nobstruction of pedestrian traffic on sidewalks, and (2) injury to pedestrians that might occur when\na pedestrian (a) walks around the obstructing vehicle and is injured by another hazard, (b) walks\ninto the obstructing vehicle, or (c) is struck when the vehicle, previously at rest on the sidewalk, is\nput in motion. The section was not designed to prevent the type of occurrence that resulted in\nplaintiffs injury in this case\xe2\x80\x94being struck on the sidewalk by a vehicle other than the illegally parked\nvehicle. Accordingly, the court correctly denied to plaintiff the presumption\xe2\x80\xa6that defendants failed\nto exercise due care.\nWe turn now to the issue of ordinary negligence\xe2\x80\xa6. Negligence is conduct which falls below the\nstandard established by law for the protection of others against unreasonable risk of harm. Only\nthose circumstances which the actor perceives or should perceive at the time of his or her action are\n\n\x0c202\n\nTORT LAW\n\nto be considered in determining whether the actor should recognize the risks that are involved in\nhis or her conduct. The actor is required to give his surroundings the attention which the average\nperson in the community would give under like circumstances and such superior attention as the\nactor himself or herself has\xe2\x80\xa6.\nPlaintiff contends the following undisputed facts are sufficient to defeat defendants\xe2\x80\x99 summary\njudgment motion: Hedges took plaintiff to the sidewalk in front of his apartment at about 10:00\np.m., to see the compact disk player in his car, and stood with plaintiff on the sidewalk within three\nto four feet of the curb, knowing that the street was undergoing construction, such that traffic was\nreduced to one lane and the surface of the road had some gravel upon it and was bumpy. In the halfblock south of his apartment building Hedges had observed between five and ten dirt mounds; the\nmounds were six to eight feet in height and four to five feet on the other side of the traffic lane.\nHedges acknowledged that due to bumps and potholes in the street, sometimes his car would act a\nlittle \xe2\x80\x9csquirrelly,\xe2\x80\x9d causing \xe2\x80\x9cmomentary loss of control of the vehicle for a split second.\xe2\x80\x9d\xe2\x80\xa6\nThe cases relied upon by the parties are focused upon determining whether the defendant\xe2\x80\x99s\nconduct was the cause of the injury, and we believe that in the case at bar the proper focus lies\nelsewhere. There is a clear distinction between the problem of foreseeability of intervening causes in\ndetermining whether the defendant\xe2\x80\x99s conduct was the proximate cause of an injury, and the problem\nof foreseeability in determining whether the defendant was negligent at all. In the latter case the\nproblem is whether or not the defendant\xe2\x80\x99s conduct was wrongful toward the plaintiff, while in the\nformer it is whether he should be relieved of responsibility for an admitted wrong because another\xe2\x80\x99s\nwrongful conduct also contributed to the injury. Where it is contended that the element of\nforeseeability is determinative of proximate cause, the court should approach the problem as one of\ndetermining the nature of the duty and the scope of the risk of the negligent conduct.\nFor Hedges to be liable for negligence, his conduct must have fallen below the standard\nestablished by law for the protection of those in plaintiff\xe2\x80\x99s situation against unreasonable risk of\nharm. Plaintiff argues that Hedges should have foreseen the likelihood that another vehicle would\nlose control and come onto the public sidewalk where he and plaintiff were standing, a few feet from\nthe curb. This, says the plaintiff, was negligence because it was near a road made hazardous by\nconstruction activity, which Hedges knew about, and it was foreseeable that these conditions could\ncause a car to lose control and run onto the curb.\nIn the circumstances of this case these facts do not raise a triable issue that Hedges\xe2\x80\x99s conduct was\nwrongful toward the plaintiff. Reasonable people would not conclude, from these facts, that Hedges\xe2\x80\x99s\nact of taking plaintiff to the sidewalk subjected her to an unreasonable risk of harm. Plaintiff relies\nsolely upon Hedges\xe2\x80\x99s knowledge of the following road conditions to establish his negligence: the\nstreet was undergoing construction; traffic was reduced to one lane; the road surface was bumpy\nand had some gravel upon it; and there were dirt mounds four to five feet to the left of the traffic\nlane. Plaintiffs expert declared that these and other factors\xe2\x80\x94deficient size of lane of travel, according\nto applicable manuals and specifications, inadequate delineation of the left side of the roadway, and\nthe asphalt overhang at the gutter\xe2\x80\x94\xe2\x80\x9cbiased\xe2\x80\x9d the Williams van to the right side of the road, and that\nthe van\xe2\x80\x99s drift to the right could be predicted by traffic engineering human factors. But Hedges is\nnot shown to have had the special knowledge of an expert, and his conduct is not judged by that\nstandard. Thus, knowledge of the \xe2\x80\x9cbias\xe2\x80\x9d condition of the roadway, or of what could have been\npredicted by using traffic engineering human factors, is superior knowledge that Hedges is not\nchargeable with. There is no evidence in the record that Hedges was aware of any prior accident in\nthis area, and there is no evidence raising a triable issue of fact that an ordinarily prudent person\nwould have understood that he or she was subjecting plaintiff to an unreasonable risk of harm by\nstanding on the public sidewalk at this location\xe2\x80\xa6.\nWe conclude that under the undisputed facts here there can be no reasonable difference of\nopinion as to whether Hedges subjected plaintiff to an unreasonable risk of harm or as to the\nforeseeability that a driver would become distracted and, due to road conditions that only qualified\nexperts would be able to detect, run up on the sidewalk in the stretch of road in front of Hedges\xe2\x80\x99s\napartment. We conclude that defendants were entitled to summary judgment\xe2\x80\xa6.\n\n\x0cCASES & CRITIQUE\n\n1.\n\n203\n\nQUESTIONS\nRealizing Risks: Is Victor in the class of persons that \xc2\xa7 22500 was meant to protect? If\nso, why doesn\xe2\x80\x99t negligence per se apply? Consider Judge Cardozo\xe2\x80\x99s words in DeHaen v.\nRockwood Sprinkler Co. of Massachusetts, 179 N.E. 764 (N.Y. 1932): \xe2\x80\x9cThe hazard out of\nwhich the accident ensued must have been the particular hazard or class of hazards that\nthe statutory safeguard in the thought and purpose of the Legislature was intended to\ncorrect.\xe2\x80\x9d Is this the idea that sinks Victor\xe2\x80\x99s argument?\n\n2.\n\nFast Eddie\xe2\x80\x99s Revisited: Would the Dram Shop Act in Fast Eddie\xe2\x80\x99s have supported an\ninstruction on negligence per se? How would you use Victor to make your argument?\n\n3.\n\nIt\xe2\x80\x99s Not All Downhill from Here: Following Victor\xe2\x80\x99s accident, both of her legs were\namputated to save her life. Years later, she told an interviewer: \xe2\x80\x9cPeople say do you want\nyour legs back? Yes! I would love to go for a run, or dance, or stand up in the shower,\nyou know. But I wouldn\xe2\x80\x99t take my legs back if that meant trading what I have and what\nI\xe2\x80\x99ve learned through all of this experience. I wouldn\xe2\x80\x99t trade that for anything.\xe2\x80\x9d After\nmultiple surgeries and years of recovery, she decided to take an adaptive skiing lesson.\nNow, as a five-time Paralympic medalist in alpine skiing, her story certainly didn\xe2\x80\x99t end\nwith defeat in the California Court of Appeal.\n\nF. Comparative Fault\nUNITED STATES v. RELIABLE TRANSFER CO.\nSupreme Court of the United States (1975)\nStewart, Justice:\n[A tanker owned by Reliable Transfer Co.\ngot stranded on a sandbar. Reliable Transfer\nsued the United States for failing to maintain\na flashing light that would have allowed the\ntanker\xe2\x80\x99s captain to avoid the sandbar. The\ndistrict court attributed 25% of the fault to the\nU.S. Coast Guard for failure to keep a working\nlight there and 75% of the fault to the boat\xe2\x80\x99s\ncaptain. The district court stated:]\nThe fault of the vessel was more egregious than the fault of the Coast Guard\xe2\x80\xa6.\nEquipped with look-out, chart, searchlight, radio-telephone, and radar, [the\ncaptain] made use of nothing except his own guesswork judgment. After turning\nin a loop toward the north so as to pass [another ship], he should have made sure\nof his position before setting his new\xe2\x80\xa6course. The fact that a northwest gale\nblowing at 45 knots with eight to ten foot seas made it difficult to see, emphasizes\nthe need for caution rather than excusing a turn into the unknown.\nThe [district] court held, however, that the settled admiralty rule of divided damages required\neach party to bear one-half of the damages to the vessel\xe2\x80\xa6.\nThe precise origins of the divided damages rule are shrouded in the mists of history\xe2\x80\xa6. [I]n 1855\nthis Court adopted the rule of equal division of damages in The Schooner Catharine v. Dickinson, 58\nU.S. 170 (1854). The rule was adopted because it was then the prevailing rule in England, because it\nhad become the majority rule in the lower federal courts, and because it seemed the most just and\nequitable, and best tended to induce care and vigilance on both sides, in the navigation. There can\nbe no question that subsequent history and experience have conspicuously eroded the rule\xe2\x80\x99s\nfoundations\xe2\x80\xa6. England has long since abandoned the rule and now follows the Brussels Collision\nLiability Convention of 1910 that provides for the apportionment of damages on the basis of\n\xe2\x80\x9cdegree\xe2\x80\x9d of fault whenever it is possible to do so. Indeed, the United States is now virtually alone\n\n\x0c204\n\nTORT LAW\n\namong the world\xe2\x80\x99s major maritime nations in not adhering to the Convention with its rule of\nproportional fault\xe2\x80\x94a fact that encourages transoceanic forum shopping.\nWhile the lower federal courts originally adhered to the divided damages rule, they have more\nrecently followed it only grudgingly, terming it \xe2\x80\x9cunfair,\xe2\x80\x9d \xe2\x80\x9cillogical,\xe2\x80\x9d \xe2\x80\x9carbitrary,\xe2\x80\x9d \xe2\x80\x9carchaic and\nfrequently unjust.\xe2\x80\x9d Judge Learned Hand was a particularly stern critic of the rule. Dissenting\nin National Bulk Carriers v. United States, 183 F.2d 405 (2d Cir. 1950), he wrote: \xe2\x80\x9cAn equal division\nof damages in this case would be plainly unjust; they ought to be divided in some such proportion\nas five to one. And so they could be but for our obstinate cleaving to the ancient rule which has been\nabrogated by nearly all civilized nations.\xe2\x80\x9d And Judge Hand had all but invited this Court to overturn\nthe rule when, in an earlier opinion for the Court of Appeals for the Second Circuit, he stated that\n\xe2\x80\x9cwe have no power to divest ourselves of this vestigial relic; we can only go so far as to close our eyes\nto doubtful delinquencies.\xe2\x80\x9d Oriental Trading & Transport Co. v. Gulf Oil Corp., 173 F. 2d 108 (1949).\nSome courts, even bolder, have simply ignored the rule\xe2\x80\xa6\nThe divided damages rule has been said to be justified by the difficulty of determining\ncomparative degrees of negligence when both parties are concededly guilty of contributing fault.\nAlthough there is some force in this argument, it cannot justify an equal division of damages in every\ncase of collision based on mutual fault. When it is impossible fairly to allocate degrees of fault, the\ndivision of damages equally between wrongdoing parties is an equitable solution. But the rule is\nunnecessarily crude and inequitable in a case like this one where an allocation of disparate\nproportional fault has been made. Potential problems of proof in some cases hardly require\nadherence to an archaic and unfair rule in all cases. Every other major maritime nation has evidently\nbeen able to apply a rule of comparative negligence without serious problems, and in our own\nadmiralty law a rule of comparative negligence has long been applied with no untoward difficulties\nin personal injury actions.\nThe argument has also been made that the divided damages rule promotes out-of-court\nsettlements, because when it becomes apparent that both vessels are at fault, both parties can readily\nagree to divide the damages\xe2\x80\x94thus avoiding the expense and delay of prolonged litigation and the\nconcomitant burden on the courts. It would be far more difficult, it is argued, for the parties to agree\non who was more at fault and to apportion damages accordingly. But the argument is hardly\npersuasive. For if the fault of the two parties is markedly disproportionate, it is in the interest of the\nslightly negligent party to litigate the controversy in the hope that the major-minor fault rule may\neventually persuade a court to absolve it of all liability. And if, on the other hand, it appears after a\nrealistic assessment of the situation that the fault of both parties is roughly equal, then there is no\nreason why a rule that apportions damages would be any less likely to induce a settlement than a\nrule that always divides damages equally. Experience with comparative negligence in the personal\ninjury area teaches that a rule of fairness in court will produce fair out-of-court settlements. But even\nif this argument were more persuasive than it is, it could hardly be accepted. For, at bottom, it asks\nus to continue the operation of an archaic rule because its facile application out of court yields quick,\nthough inequitable, settlements, and relieves the courts of some litigation. Congestion in the courts\ncannot justify a legal rule that produces unjust results in litigation simply to encourage speedy outof-court accommodations\xe2\x80\xa6.\nWe hold that when two or more parties have contributed by their fault to cause property damage\nin a maritime collision or stranding, liability for such damage is to be allocated among the parties\nproportionately to the comparative degree of their fault, and that liability for such damages is to be\nallocated equally only when the parties are equally at fault or when it is not possible fairly to measure\nthe comparative degree of their fault\xe2\x80\xa6.\n1.\n2.\n\nQUESTIONS\nThe Demise of Divided Damages: What\xe2\x80\x99s the most compelling argument in favor of\nsimply dividing damages? Was it right for the Supreme Court to jettison this rule?\nSplitting the Baby: The Court says that the rule of comparative fault should give way to\ndivided damages \xe2\x80\x9cwhen it is not possible fairly to measure the comparative degree of\ntheir fault.\xe2\x80\x9d In practice, when would that exception apply? Or, perhaps more cynically,\nis it ever possible to fairly measure the parties\xe2\x80\x99 comparative degrees of fault?\n\n\x0cCASES & CRITIQUE\n\n3.\n\n205\n\nContributory Negligence: If the plaintiff bringing a lawsuit is also at fault for their\ninjuries due to their own negligence, why shouldn\xe2\x80\x99t they be barred from recovering\nanything at all? If you think that rule seems unfair, how can you explain its prevalence\nin many states as recently as the 1990s? Indeed, the all-or-nothing regime of\ncontributory negligence remains the rule in several states and the District of Columbia.\n\nHUNT v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION\nCourt of Claims of Ohio (1997)\nStrausbaugh, Judge:\n\xc3\xa3\n\nIn her complaint, plaintiff, Lesa Hunt, alleges that\ndefendant, Department of Rehabilitation and Correction\n(\xe2\x80\x9cODRC\xe2\x80\x9d), negligently instructed and trained her to operate\na snowblower, and that she was not provided with\nsupervision while she was operating the snowblower.\nPlaintiff alleges that as a result, she inserted her hand in the\nchute in an attempt to unclog the snowblower, thereby\ncausing her bodily injury\xe2\x80\xa6.\nAt the time of the accident, plaintiff was an inmate in the custody and control of defendant\xe2\x80\xa6.\nOn January 23, 1995, plaintiff was operating a Gravely snowblower while working with the outside\nyard crew. Carl Jenkins was the corrections officer in charge of the yard crew. Plaintiff and fellow\ninmate, Claudia DeJesus, were assigned to clear the sidewalks of two streets with the snowblower.\nWhile plaintiff was operating the snowblower, the chute became clogged with snow. Plaintiff put the\nsnowblower in neutral and turned the \xe2\x80\x9cPower Take Off\xe2\x80\x9d (\xe2\x80\x9cPTO\xe2\x80\x9d) switch to the \xe2\x80\x9coff\xe2\x80\x9d position. The\nPTO switch shut down the blower. After visually inspecting the chute, plaintiff inserted her hand\ninside the chute and began cleaning out the packed snow. As she was removing the snow, the\nmachine caught plaintiff\xe2\x80\x99s gloved hand and started pulling it into the chute. Although her glove\nremained caught in the chute, and plaintiff was able to pull her hand out, her right index, middle\nand third fingers were partially severed.\nPrior to her assignment on that day, plaintiff and DeJesus had been instructed by Officer Jenkins\non how to operate the snowblower. The training session lasted approximately ten minutes. This was\nthe first time that Officer Jenkins had trained anyone to operate the snowblower, in spite of the fact\nthat he had no prior experience operating the snowblower. Although Officer Jenkins did not read\nthe operator\xe2\x80\x99s manual, he had been trained one week prior to the accident by Woody Meyers, head\nof the maintenance department, who had instructed him that if the chute became clogged, to push\nthe PTO switch in, turn the power switch off with the key, and clean out the snow with water or\nsome device. Meyers cautioned against placing one\xe2\x80\x99s hand down the chute.\nThe court finds that Officer Jenkins, in good faith, believed that he had instructed plaintiff on all\nof the above. However, even if he did instruct plaintiff in this manner, there was insufficient\nemphasis placed on the importance of the safety instructions. The court finds that plaintiff was\nunder the impression that she needed only to push the PTO switch into the \xe2\x80\x9coff\xe2\x80\x99 position. Plaintiff\ndid not consider the snowblower a dangerous machine and did not realize that there were moving\nparts that could still be spinning for a period of time after the snowblower was turned off. The court\nfinds that plaintiff was not made aware that the engine should also be shut off prior to cleaning out\npacked snow and that she should never place her hand in the chute.\nPlaintiff\xe2\x80\x99s claim sets forth a single cognizable action, sounding in negligence\xe2\x80\xa6. In the special\nrelationship between the state and its prisoners, the state owes prisoners a duty of reasonable care\nand protection from unreasonable risks of harm. Reasonable care is that which would be utilized by\nan ordinarily prudent person under certain circumstances. An inmate laborer, such as plaintiff in\nthe case at bar, is not an employee of the state\xe2\x80\xa6.\n\n\xc3\xa3\n\nRob Lee, Tatiana Snowblowing (CC BY-ND 2.0).\n\n\x0c206\n\nTORT LAW\n\nThe court finds that defendant owed plaintiff a duty to warn her of the potential risks associated\nwith the operation of the snowblower. The court further finds that plaintiff received inadequate\nsafety training concerning what actions to take in the event that the snowblower became clogged.\nThe operation of the machine was relatively new to both plaintiff and Officer Jenkins. Therefore,\nplaintiff should have received more detailed and hands-on safety training with the snowblower. It is\nnot unreasonable to expect that a new user of such a machine may believe that the blades would\nimmediately shut off by putting the PTO switch in the \xe2\x80\x9coff\xe2\x80\x99 position, without being specifically\nwarned also to turn the ignition switch to the \xe2\x80\x9coff\xe2\x80\x99 position and wait for the blades to stop. The court\nfinds that defendant did not adequately instruct plaintiff on the proper operation of the snowblower,\nand defendant is therefore negligent, since it breached its duty of reasonable care to protect plaintiff\nfrom harm.\nAlthough the court finds that defendant was negligent, Ohio\xe2\x80\x99s comparative negligence\nstatute bars a plaintiff from recovery if his or her actions were a greater cause (more than fifty\npercent) of his injuries than any acts of defendant. In this case, the court finds that although\nplaintiff\xe2\x80\x99s own negligence was not a greater causative factor, it constituted forty percent of the cause\nof her injuries.\nThe court finds that plaintiff disregarded a potential hazard and failed to use common sense\nwhen she inserted her hand in the chute of the snowblower. The court concludes that plaintiff has\nproven that defendant breached its duty of reasonable care; however, the contributory negligence\nattributable to plaintiff is forty percent. Judgment is hereby rendered for plaintiff. A trial on the issue\nof damages will be scheduled in the near future.\n1.\n2.\n\nQUESTIONS\nRound Numbers: The judge concludes that Hunt was 40% at fault for her own injuries.\nWhy 40%? Why not 30%? Or 57%? Where are these nice round numbers coming from?\nDo the Math: The Supreme Court in Reliable Transfer applied a rule of \xe2\x80\x9cpure\xe2\x80\x9d\ncomparative fault\xe2\x80\x94i.e., when more than one party is at fault, liability is \xe2\x80\x9callocated among\nthe parties proportionately to the comparative degree of their fault,\xe2\x80\x9d regardless of the\npercentage share assigned to each party. How is Ohio\xe2\x80\x99s rule of \xe2\x80\x9cmodified\xe2\x80\x9d comparative\nfault different? Had the judge concluded that Hunt was 50% at fault, how much would\nshe have received in damages? What if she was 51% at fault?\nBOOZY BORIS PROBLEM\n\nBoris drives home drunk from the pub and hits a traffic light. Dr. Jeremy successfully treats\nBoris\xe2\x80\x99s serious injuries and then puts him on oxygen because he\xe2\x80\x99s struggling to breathe. Due to Dr.\nJeremy\xe2\x80\x99s carelessness, however, Boris suffers brain damage when the oxygen is temporarily cut.\nShould Boris\xe2\x80\x99s fault in getting injured in the first place limit any damages he could recover? Or is\nthe reason for him needing emergency care irrelevant when the case is about Dr. Jeremy\xe2\x80\x99s\ncarelessness in providing that care?\nRESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY \xc2\xa7 8\nFactors for Assigning Shares of Responsibility (2000)\nFactors for assigning percentages of responsibility to each person\nwhose legal responsibility has been established include\n(a) the nature of the person\xe2\x80\x99s risk-creating conduct, including any\nawareness or indifference with respect to the risks created by\nthe conduct and any intent with respect to the harm created by\nthe conduct; and\n(b) the strength of the causal connection between the person\xe2\x80\x99s risk-creating conduct and the harm.\n\xc3\xa3\n\n\xc3\xa3\n\nValberg L\xc3\xa1russon, Tomato Juice Crumb Cake (CC BY 2.0); Alexander Savin, R\xc3\xa4ysk\xc3\xa4l\xc3\xa4 Skydive (CC BY 2.0).\n\n\x0cCASES & CRITIQUE\n\n207\n\nPOST-WORKOUT PROBLEM\nMo is driving home from the gym after lifting heavy weights for several hours. As he turns onto\nthe highway, he suddenly feels some soreness in his bulging bicep. Only then does he remember that\nhe didn\xe2\x80\x99t stretch properly after his workout. He parks his car on the highway shoulder and gets out\nto give himself some room to move. His car isn\xe2\x80\x99t blocking any traffic, but it\xe2\x80\x99s very close to the edge\nof the fast lane. Within minutes, Alex clips the side of Mo\xe2\x80\x99s car with her motorbike, leading her to\nfall and suffer horrendous injuries. Mo, who had just completed his first set of lunges, was unscathed.\nAlex later admits that, after pulling an all-nighter playing videogames and then driving for two\nhours, she had dozed off just before the collision. Alex sues Mo for negligence, producing evidence\nthat she suffered $1 million in compensable damages due to her injuries.\n(a) What\xe2\x80\x99s Alex likely to recover under systems of contributory negligence, pure\ncomparative fault, and modified comparative fault? First give the rule, then your opinion\nof the likely result.\n(b) After doing this exercise, does the rule of divided damages seem more or less attractive?\n\nG. Assumption of the Risk\nJONES v. DRESSEL\nSupreme Court of Colorado (1981)\nErickson, Justice:\n\xe2\x80\xa6In an action for damages by the plaintiff for\npersonal injuries sustained in an airplane crash, the\ntrial court granted the defendants\xe2\x80\x99 motion for\npartial summary judgment. Summary judgment\nwas based upon the execution of an exculpatory\nagreement which the court held insulated the\ndefendants from liability for simple negligence\ninvolving the crash of an airplane\xe2\x80\xa6.\nOn November 17, 1973, the plaintiff, William\nMichael Jones, who was then seventeen years old,\nsigned a contract with the defendant, Free Flight Sport Aviation, Inc. (Free Flight).1 The contract\nallowed Jones to use Free Flight\xe2\x80\x99s recreational skydiving facilities, which included use of an airplane\nto ferry skydivers to the parachute jumping site. A covenant not to sue and a clause exempting Free\nFlight from liability were included in the contract:\n2A. EXEMPTION FROM LIABILITY. The plaintiff exempts and releases the\nCorporation, its, owners, officers, agents, servants, employees, and lessors from\nany and all liability, claims, demands or actions or causes of action whatsoever\narising out of any damage, loss or injury to the plaintiff or the plaintiff\xe2\x80\x99s property\nwhile upon the premises or aircraft of the Corporation or while participating in\nany of the activities contemplated by this Agreement, whether such loss, damage,\nor injury results from the negligence of the Corporation, its officers, agents,\nservants, employees, or lessors or from some other cause.\n\n1\nEven though Jones\xe2\x80\x99 mother had ratified the terms of this contract on November 16, 1973, it should be noted that the\napproval by a parent does not necessarily validate an infant child\xe2\x80\x99s contract.\n\n\x0c208\n\nTORT LAW\n\nThe contract also contained an alternative provision which would have permitted Jones to use\nFree Flight\xe2\x80\x99s facilities at an increased cost, but without releasing Free Flight from liability for\nnegligence.2\nOn December 28, 1973, Jones attained the age of eighteen. Ten months later, on October 19,\n1974, he suffered serious personal injuries in an airplane crash which occurred shortly after takeoff\nfrom Littleton Airport. Free Flight furnished the airplane as part of its skydiving operation.\nOn November 21, 1975, nearly two years after attaining his majority, Jones filed suit against Free\nFlight alleging negligence and willful and wanton misconduct as the cause of the airplane crash. The\ndefendants included the owners and operators of the airplane, the airport, and Free Flight. Based\nupon the exculpatory agreement, the trial court granted summary judgment in favor of the\ndefendants. The court of appeals affirmed the trial court.\nJones asserts three grounds for reversal of the summary judgment. First, he claims that he\ndisaffirmed the contract with Free Flight within a reasonable time after he attained his majority by\nfiling suit. Second, he asserts that the exculpatory agreement is void as a matter of public policy.\nThird, he contends that inasmuch as an exculpatory agreement must be strictly construed against\nthe party seeking to avoid liability for negligence, the injuries which he sustained as a result of the\nairplane crash were beyond the scope of the agreement\xe2\x80\xa6.\nRatification\nAs a matter of public policy, the courts have protected minors from improvident and imprudent\ncontractual commitments by declaring that the contract of a minor is voidable at the election of the\nminor after he attains his majority. A minor may disaffirm a contract made during his minority\nwithin a reasonable time after attaining his majority or he may, after becoming of legal age, by acts\nrecognizing the contract, ratify it\xe2\x80\xa6. What act constitutes ratification or disaffirmance is ordinarily\na question of law to be determined by the trial court\xe2\x80\xa6. We conclude\xe2\x80\xa6that the trial court properly\ndetermined that Jones ratified the contract, as a matter of law, by accepting the benefits of the\ncontract when he used Free Flight\xe2\x80\x99s facilities on October 19, 1974\xe2\x80\xa6.\nThe Contract\nJones\xe2\x80\x99 assertion that his contract with Free Flight is void as a matter of public policy, raises two\nissues: (A) whether the contract with Free Flight is an adhesion contract; and (B) the validity of the\nexculpatory provisions of the contract\xe2\x80\xa6.\nAn adhesion contract is a contract drafted unilaterally by a business enterprise and forced upon\nan unwilling and often unknowing public for services that cannot readily be obtained elsewhere. An\nadhesion contract is generally not bargained for, but is imposed on the public for a necessary service\non a take or leave it basis\xe2\x80\xa6. There must be a showing that the parties were greatly disparate in\nbargaining power, that there was no opportunity for negotiation, or that the services could not be\nobtained elsewhere\xe2\x80\xa6.\nWe conclude that the record in the instant case supports the trial court\xe2\x80\x99s determination that the\ncontract between Jones and Free Flight was not an adhesion contract as a matter of law. Jones\ncontends that this was an adhesion contract because he was not allowed to select the alternative\nprovision which would have allowed him to participate in the activities without releasing Free Flight\nfrom liability for its negligence, and that a genuine issue as to his lack of choice precluded the entry\n2\nThe record indicates that the alternative provision of the contract was crossed out when Jones signed the contract.\nHowever, the record does not establish that Free Flight would have prohibited Jones from participating in skydiving activities\nif the alternative provision had not been crossed out.\n\n2B. ALTERNATE PROVISION. In consideration of the deletion of the provisions, 2A, 3, 4, and 5\nherein regarding ASSUMPTION OF RISK, EXEMPTION FROM LIABILITY, COVENANT NOT TO\nSUE, INDEMNITY AGAINST THIRD PARTY CLAIMS, and CONTINUATION OF\nOBLIGATIONS, the Participant has paid the additional sum of $50.00 upon execution of this\nagreement, receipt of which is hereby acknowledged by the Corporation.\n2C. It is understood that acceptance of this ALTERNATIVE PROVISION does not constitute a\ncontract of insurance, but only waives Corporation\xe2\x80\x99s contractual defenses which would otherwise be\navailable.\n\n\x0cCASES & CRITIQUE\n\n209\n\nof summary judgment. We disagree\xe2\x80\xa6. [T]he fact that a contract is a printed form contract and\noffered on a \xe2\x80\x9ctake-it-or-leave-it\xe2\x80\x9d basis does not alone cause it to be an adhesion contract. We also\nagree with the court of appeals\xe2\x80\x99 conclusion that nothing in the record establishes a disparity in\nbargaining power, or that the services provided by Free Flight could not be obtained elsewhere.\nJones asserts that the exculpatory agreement is void as a matter of public policy. We disagree.\nThe defendants contend that Barker v. Colorado Region, 532 P.2d 372 (Colo. Ct. App. 1974), is\ndispositive of the issue of the validity of the exculpatory agreement. In Barker, the court of appeals\nheld that an exculpatory clause in a contract relating to recreational activities will be given effect\nwhere the intention of the parties is expressed in sufficiently clear and unequivocal language and\ndoes not fall within any of the categories where the public interest is directly involved.\nJones, however, claims that summary judgment should not have been granted\xe2\x80\xa6. First, he argues\nthat because exculpatory agreements must be strictly construed against the party seeking exemption,\nthe agreement here does not insulate the defendants from liability for negligence in connection with\na crash that occurred prior to the time that Jones made a parachute jump\xe2\x80\xa6. [Second], he contends\nthat Free Flight\xe2\x80\xa6cannot contract away its liability for negligence in the performance of a duty\nimposed by law or where the public interest requires performance.\nThe determination of the sufficiency and validity of an exculpatory agreement is a question of\nlaw for the court to determine\xe2\x80\xa6. An exculpatory agreement, which attempts to insulate a party from\nliability from his own negligence, must be closely scrutinized, and in no event will such an agreement\nprovide a shield against a claim for willful and wanton negligence\xe2\x80\xa6. In determining whether an\nexculpatory agreement is valid, there are four factors which a court must consider: (1) the existence\nof a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly\nentered into; and (4) whether the intention of the parties is expressed in clear and unambiguous\nlanguage. Measured against the four factors which determine the validity of an exculpatory\nagreement, we conclude that the trial court correctly held, as a matter of law, that the exculpatory\nagreement was valid\xe2\x80\xa6.\nThe duty to the public factor is not present in this case. In Tunkl v. Regents of University of\nCalifornia, 383 P.2d 441 (Cal. 1963), the California Supreme Court stated:\nIn placing particular contracts within or without the category of those affected with\na public interest, the courts have revealed a rough outline of that type of transaction\nin which exculpatory provisions will be held invalid. Thus the attempted but\ninvalid exemption involves a transaction which exhibits some or all of the following\ncharacteristics. [1.] It concerns a business of a type generally thought suitable for\npublic regulation. [2.] The party seeking exculpation is engaged in performing a\nservice of great importance to the public, which is often a matter of practical\nnecessity for some members of the public. [3.] The party holds himself out as\nwilling to perform this service for any member of the public who seeks it, or at least\nfor any member coming within certain established standards. [4.] As a result of the\nessential nature of the service, in the economic setting of the transaction, the party\ninvoking exculpation possesses a decisive advantage of bargaining strength against\nany member of the public who seeks his services. [5.] In exercising a superior\nbargaining power the party confronts the public with a standardized adhesion\ncontract of exculpation, and makes no provision whereby a purchaser may pay\nadditional reasonable fees and obtain protection against negligence. [6.] Finally, as\na result of the transaction, the person or property of the purchaser is placed under\nthe control of the seller, subject to the risk of carelessness by the seller or his agents.\nIn light of the foregoing factors, we conclude that the contract between Jones and Free Flight\ndoes not fall within the category of agreements affecting the public interest\xe2\x80\xa6. While it is not\nnecessary for a contract to embody all of the characteristics set forth in Tunkl to meet the test, we\nconclude that an insufficient number of these characteristics are present in the instant case to\nestablish that the contract between Jones and Free Flight affected the public interest. The service\nprovided by Free Flight was not a matter of practical necessity for even some members of the public;\n\n\x0c210\n\nTORT LAW\n\nbecause the service provided by Free Flight was not an essential service, it did not possess a decisive\nadvantage of bargaining strength over Jones; and the contract was not an adhesion contract.\nFinally, \xe2\x80\xa6we note that there was no disagreement between the parties that the contract was fairly\nentered into. Likewise, the agreement expressed the parties\xe2\x80\x99 intention in clear and unambiguous\nlanguage; the contract used the word \xe2\x80\x9cnegligence\xe2\x80\x9d and specifically included injuries sustained \xe2\x80\x9cwhile\nupon the aircraft of the Corporation.\xe2\x80\x9d\nWe conclude that the exculpatory agreement was not void as a matter of public policy\xe2\x80\xa6.\n1.\n\nQUESTIONS\nRead the Fine Print: Looking at the terms of Free Flight\xe2\x80\x99s liability waiver, was the\ncompany\xe2\x80\x99s alleged negligence in crashing the airplane covered? Would the waiver apply\nif William had instead been hit by a carelessly driven Free Flight van while waiting for\nhis mother in the parking lot after skydiving? What if he got food poisoning after eating\nbad sushi in Free Flight\xe2\x80\x99s cafeteria before boarding the plane?\n\n2.\n\nTake It or Leave It: If similar exculpatory terms were found in every skydiving contract\nin Colorado, would William have a stronger argument that Free Flight\xe2\x80\x99s liability waiver\nwas a contract of adhesion? Would it have been a winning argument?\n\n3.\n\nFreefall Fanatics: If Coloradans were devoted skydivers, such that 93% of all residents\nin the Centennial State did at least one jump before their twenty-first birthday, would\nthis case come out differently?\nDALURY v. S-K-I, LTD.\nSupreme Court of Vermont (1995)\n\nJohnson, Justice:\n\n\xc3\xa3\n\nWe reverse the trial court\xe2\x80\x99s grant of summary\njudgment for defendants S-K-I, Ltd. and Killington, Ltd. in\na case involving an injury to a skier at a resort operated by\ndefendants. We hold that the exculpatory agreements\nwhich defendants require skiers to sign, releasing\ndefendants from all liability resulting from negligence, are\nvoid as contrary to public policy.\nWhile skiing at Killington Ski Area, plaintiff Robert\nDalury sustained serious injuries when he collided with a\nmetal pole that formed part of the control maze for a ski\nlift line. Before the season started, Dalury had purchased a midweek season pass and signed a form\nreleasing the ski area from liability. The relevant portion reads:\nRELEASE FROM LIABILITY AND CONDITIONS OF USE\n1. I accept and understand that Alpine Skiing is a hazardous sport with many\ndangers and risks and that injuries are a common and ordinary occurrence of the\nsport. As a condition of being permitted to use the ski area premises, I freely accept\nand voluntarily assume the risks of injury or property damage and release\nKillington Ltd., its employees and agents from any and all liability for personal\ninjury or property damage resulting from negligence, conditions of the premises,\noperations of the ski area, actions or omissions of employees or agents of the ski\narea or from my participation in skiing at the area, accepting myself the full\nresponsibility for any and all such damage or injury of any kind which may result.\nPlaintiff also signed a photo identification card that contained this same language.\nDalury and his wife filed a complaint against defendants, alleging negligent design, construction,\nand replacement of the maze pole. Defendants moved for summary judgment, arguing that the\n\xc3\xa3\n\nJonas Bengtsson, Ski Lift (CC BY 2.0).\n\n\x0cCASES & CRITIQUE\n\n211\n\nrelease of liability barred the negligence action. The trial court, without specifically addressing\nplaintiffs\xe2\x80\x99 contention that the release was contrary to public policy, found that the language of the\nrelease clearly absolved defendants of liability for their own negligence.\nThe trial court based its decision on Douglass v. Skiing Standards, Inc., 459 A.2d 97 (Vt. 1983), in\nwhich we held that an exculpatory agreement was sufficient to bar a negligence action by a\nprofessional freestyle skier who was injured in a skiing competition, and two subsequent decisions\nof the United States District Court for the District of Vermont. See Estate of Geller v. Mount Snow\nLtd., No. 89-66 (D. Vt. May 21, 1991) (summary judgment granted where plaintiff recreational\nskier signed release on back of ski pass); Barenthein v. Killington, Ltd., No. 86-33 (D. Vt. June 17,\n1987) (summary judgment granted where plaintiff signed equipment rental agreement which\ncontained a release). The trial court did not view the distinction between professional and\nrecreational skiing as significant, and granted summary judgment on the ground that the release was\nclear and unambiguous.\nOn appeal, plaintiffs contend that the release was ambiguous as to whose liability was waived\nand that it is unenforceable as a matter of law because it violates public policy. We agree with\ndefendants that the release was quite clear in its terms. Because we hold the agreement is\nunenforceable, we proceed to a discussion of the public policy that supports our holding.\nThis is a case of first impression in Vermont. While we have recognized the existence of a public\npolicy exception to the validity of exculpatory agreements, in most of our cases, enforceability has\nturned on whether the language of the agreement was sufficiently clear to reflect the parties\xe2\x80\x99 intent.\nEven well-drafted exculpatory agreements, however, may be void because they violate public\npolicy. According to the Restatement (Second) of Torts \xc2\xa7 496B (1965), an exculpatory agreement\nshould be upheld if it is (1) freely and fairly made, (2) between parties who are in an equal bargaining\nposition, and (3) there is no social interest with which it interferes. The critical issue here concerns\nthe social interests that are affected.\nCourts and commentators have struggled to develop a useful formula for analyzing the public\npolicy issue. The formula has been the subject of great debate during the whole course of the\ncommon law, and it had proven impossible to articulate a precise definition because the social forces\nthat have led to such characterization are volatile and dynamic. The leading judicial formula for\ndetermining whether an exculpatory agreement violates public policy was set forth by Justice\nTobriner of the California Supreme Court [in Tunkl v. Regents of Univ. of Cal., 383 P.2d 441 (Cal.\n1963)]. An agreement is invalid if it exhibits some or all of the [the six Tunkl factors outlined above\nin Jones v. Dressel.]\xe2\x80\xa6\nNumerous courts have adopted and applied the Tunkl factors. See Wagenblast v. Odessa Sch.\nDist. No. 105-157-166J, 758 P.2d 968 (Wash. 1988) (release for school district\xe2\x80\x99s interscholastic\nathletics violated public policy); Kyriazis v. Univ. of W. Va., 450 S.E.2d 649 (W. Va. 1994) (release\nfor state university-sponsored club rugby was invalid because \xe2\x80\x9c[w]hen a state university provides\nrecreational activities to its students, it fulfills its educational mission, and performs a public\nservice\xe2\x80\x9d). Other courts have incorporated the Tunkl factors into their decisions. The Colorado\nSupreme Court [in Jones v. Dressel, 623 P.2d 370 (Colo. 1981)] concluded, based on\nthe Tunkl factors, that no duty to the public was involved in air service for a parachute jump, because\nthat sort of service does not affect the public interest. Using a similar formula, the Wyoming\nSupreme Court concluded that a ski resort\xe2\x80\x99s sponsorship of an Ironman Decathlon competition did\nnot invoke the public interest. Milligan v. Big Valley Corp., 754 P.2d 1063 (Wyo. 1988).\nOn the other hand, the Virginia Supreme Court recently concluded, in the context of a \xe2\x80\x9cTeflon\nMan Triathlon\xe2\x80\x9d competition, that a preinjury release from liability for negligence is void as against\npublic policy because it is simply wrong to put one party to a contract at the mercy of the other\xe2\x80\x99s\nnegligence. The court stated: \xe2\x80\x9cTo hold that it was competent for one party to put the other parties\nto the contract at the mercy of its own misconduct can never be lawfully done where an enlightened\nsystem of jurisprudence prevails. Public policy forbids it, and contracts against public policy are\nvoid.\xe2\x80\x9d Hiett v. Lake Barcroft Community Ass\xe2\x80\x99n, 418 S.E.2d 894 (Va. 1992).\nHaving reviewed these various formulations of the public policy exception, we accept them as\nrelevant considerations, but not as rigid factors that, if met, preclude further analysis. Instead, we\nrecognize that no single formula will reach the relevant public policy issues in every factual context.\n\n\x0c212\n\nTORT LAW\n\nLike the court in Wolf v. Ford, 644 A.2d 522 (Md. 1994), we conclude that ultimately the\n\xe2\x80\x9cdetermination of what constitutes the public interest must be made considering the totality of the\ncircumstances of any given case against the backdrop of current societal expectations.\xe2\x80\x9d\nDefendants urge us to uphold the exculpatory agreement on the ground that ski resorts do not\nprovide an essential public service. They argue that they owe no duty to plaintiff to permit him to\nuse their private lands for skiing, and that the terms and conditions of entry ought to be left entirely\nwithin their control. Because skiing, like other recreational sports, is not a necessity of life,\ndefendants contend that the sale of a lift ticket is a purely private matter, implicating no public\ninterest. See, e.g., Milligan, 754 P.2d at 1066 (\xe2\x80\x9cGenerally, a private recreational business does not\nqualify as a service demanding a special duty to the public, nor are its services of a special, highly\nnecessary or essential nature.\xe2\x80\x9d). We disagree.\nWhether or not defendants provide an essential public service does not resolve the public policy\nquestion in the recreational sports context. The defendants\xe2\x80\x99 area is a facility open to the public. They\nadvertise and invite skiers and nonskiers of every level of skiing ability to their premises for the price\nof a ticket. At oral argument, defendants conceded that thousands of people buy lift tickets every\nday throughout the season. Thousands of people ride lifts, buy services, and ski the trails. Each ticket\nsale may be, for some purposes, a purely private transaction. But when a substantial number of such\nsales take place as a result of the seller\xe2\x80\x99s general invitation to the public to utilize the facilities and\nservices in question, a legitimate public interest arises.\nThe major public policy implications are those underlying the law of premises liability. In\nVermont, a business owner has a duty of active care to make sure that its premises are in safe and\nsuitable condition for its customers. We have recognized this duty of care where the defendant\xe2\x80\x99s\nroutine business practice creates a foreseeable hazard for its customers. The business invitee has a\nright to assume that the premises, aside from obvious dangers, are reasonably safe for the purpose\nfor which he is upon them, and that proper precaution has been taken to make them so. We have\nalready held that a ski area owes its customers the same duty as any other business\xe2\x80\x94to keep its\npremises reasonably safe.\nThe policy rationale is to place responsibility for maintenance of the land on those who own or\ncontrol it, with the ultimate goal of keeping accidents to the minimum level possible. Defendants,\nnot recreational skiers, have the expertise and opportunity to foresee and control hazards, and to\nguard against the negligence of their agents and employees. They alone can properly maintain and\ninspect their premises, and train their employees in risk management. They alone can insure against\nrisks and effectively spread the cost of insurance among their thousands of customers. Skiers, on the\nother hand, are not in a position to discover and correct risks of harm, and they cannot insure against\nthe ski area\xe2\x80\x99s negligence.\nIf defendants were permitted to obtain broad waivers of their liability, an important incentive\nfor ski areas to manage risk would be removed with the public bearing the cost of the resulting\ninjuries. It is illogical, in these circumstances, to undermine the public policy underlying business\ninvitee law and allow skiers to bear risks they have no ability or right to control.\nFor these reasons, we disagree with the decisions of the United States District Court for the\nDistrict of Vermont, upholding exculpatory agreements similar to the one at issue here. We do not\naccept the proposition that because ski resorts do not provide an essential public service, such\nagreements do not affect the public interest. A recognition of the principles underlying the duty to\nbusiness invitees makes clear the inadequacy of relying upon the essential public service factor in\nthe analysis of public recreation cases. While interference with an essential public service surely\naffects the public interest, those services do not represent the universe of activities that implicate\npublic concerns.\nMoreover, reliance on the private nature of defendants\xe2\x80\x99 property would be inconsistent with\nsocietal expectations about privately owned facilities that are open to the general public. Indeed,\nwhen a facility becomes a place of public accommodation, it renders a service which has become of\npublic interest in the manner of the innkeepers and common carriers of old. Defendants are not\ncompletely unfettered, as they argue, in their ability to set the terms and conditions of admission.\nDefendants\xe2\x80\x99 facility may be privately owned, but that characteristic no longer overcomes a myriad\nof legitimate public interests. Public accommodations laws that prohibit discrimination against\n\n\x0cCASES & CRITIQUE\n\n213\n\npotential users of the facility are just one example of limitations imposed by law that affect the terms\nand conditions of entry\xe2\x80\xa6.\n1.\n\nQUESTIONS\nSport the Difference: Why do Jones and Dalury come out differently? Is Colorado just filled\nwith rugged individualists and Vermont with fussy paternalists?\n\n2.\n\nProceed at Your Own Risk: One possible difference is that skydiving arguably carries\ngreater risk of serious injuries on per-capita basis. But which way would that cut? Should\npublic policy make it easier or harder to waive liability for riskier activities?\n\n3.\n\nWhere Ought the Obligation Be? Do you think Dalury comes out the same way if it\nhappened in Georgia, not Vermont? Why might we care about an activity\xe2\x80\x99s popularity\nin a particular state? In thinking this through, consider the possible relevance of Judge\nCardozo\xe2\x80\x99s words in MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916): \xe2\x80\x9cWe\nhave put aside the notion that the duty to safeguard life and limb, when the consequences\nof negligence may be foreseen, grows out of contract and nothing else. We have put the\nsource of the obligation where it ought to be. We have put its source in the law.\xe2\x80\x9d\nSMOLLETT v. SKAYTING DEVELOPMENT CORP.\nUnited States Court of Appeals for the Third Circuit (1986)\n\nHunter, Judge:\n\n\xc3\xa3\n\nOn February 15, 1981, Helene Smollett and\nher husband attended a fundraiser at a skating\nrink owned by Skayting Development\nCorporation. Smollett, who was thirty-three\nyears old at that time, is an experienced skater.\nAlthough she had not skated for the two years\nbefore she went to the appellant\xe2\x80\x99s rink, she had\nskated over fifty times in her life.\nWhen Smollett and her husband entered the\nrink, they noticed that there were no guardrails.\nThey discussed this with the owner, Les Cooper,\nwho told them that this design was the practice\nat many new rinks to further safety by avoiding\nthe use of guardrails which could become loose and collapse unexpectedly. Smollett did not take\nskating lessons although they were offered to everyone at the fundraiser.\nThe skating area, which had a polyurethane surface, was raised three to five inches higher than\nthe surrounding floor, which was carpeted. Smollett skated for about ninety minutes, until 7:50 p.m.,\nwithout mishap. The rink was not overcrowded, with fifty to one hundred people skating. There\nwere eight skateguards working that night and at least two were on the skating floor. Several signs\nreading \xe2\x80\x9cskate at your own risk\xe2\x80\x9d were posted in the rink. The skaters included many children and\ninexperienced skaters. At 7:50 p.m. Smollett\xe2\x80\x99s husband wished to leave. She told him she would join\nhim after she took two last turns around the rink. On her last lap, Smollett skated behind a young\nchild who fell. To avoid the child and a skater on her left, she swerved to the right onto the carpeted\narea. She fell and broke her left wrist. Her injury required surgery on the day of the accident and\nagain one year later.\nSmollett and her husband filed this suit against the rink. As a defense, Skayting asserted that\nSmollett had assumed the risk of injury. [At trial] the jury returned a verdict for Smollett but made\nno award to her husband. Because the jury found Smollett 50% at fault, her award was reduced from\n$50,000 to $25,000. The court denied Skayting\xe2\x80\x99s motion for judgment notwithstanding the verdict\nor, in the alternative, for a new trial\xe2\x80\xa6.\n\xc3\xa3\n\nMemphis Heritage, Skating Rink 12-1976 (CC BY 2.0).\n\n\x0c214\n\nTORT LAW\n\nWe hold that it was error to deny the skating rink\xe2\x80\x99s motion for judgment notwithstanding the\nverdict because there was insufficient evidence to find that Smollett had not assumed the risk of\ninjury. The Virgin Islands has enacted a comparative negligence statute, V.I. Code Ann. tit. 5, \xc2\xa7 1451,\nand thereby removed the contributory negligence bar to recovery. Assumption of risk is still\navailable as a complete defense to a negligence claim but it has been limited by enactment of the\ncomparative negligence statute. Assumption of risk, to the extent it incorporates the concept of fault\non the part of the actor and, therefore, overlaps with contributory negligence, is no longer available\nas a defense. However, assumption of risk can still be applied to non-negligent conduct which\nconstitutes waiver or consent but which involved no negligence. In such cases the absolute bar to\nrecovery remains.\nThe evidence in this case shows that Smollett fully understood the risk of harm to herself and\nvoluntarily chose to enter the area of risk. She, therefore, implicitly assumed the risk of injury.\nSmollett admitted that she was aware that there were no guardrails, that the skating area was covered\nwith a smooth surface and was elevated, and that the area around the rink was carpeted. All of these\ncircumstances were clearly visible as was the fact that young and inexperienced skaters were at the\nrink that day.\nSmollett contends that she did not assume the risk because she was not aware of the dangerous\ncondition created by the combination of three circumstances at the rink: 1) lack of guardrails;\n2) elevated skating area; 3) difference in coefficient of friction between the skating surface and the\nsurrounding carpeted area. We believe that Smollett was aware of the risk of falling when going from\nthe skating area to the surrounding carpeted area. To reach the rink she had to walk on the carpeted\narea with her skates and, therefore, she had to be aware that the carpet slowed down the wheels on\nthe skates. She had skated many times before and knew that other skaters might fall down in her path.\nWe conclude that Smollett assumed the risk of injury. We will reverse the judgment of the district\ncourt denying a judgment notwithstanding the verdict and direct the district court to enter judgment\nfor Skayting Development Corporation.\nMansmann, Judge, dissenting:\n\xe2\x80\xa6I believe that the defendant has not demonstrated that the record lacks a minimum quantum\nof evidence from which a jury could reasonably have afforded relief. Therefore, I would affirm the\njudgment of the district court.\nAssumption of the risk is an affirmative defense which has traditionally been considered an\nabsolute bar to recovery. Although the Virgin Islands has enacted a contributory negligence statute\nwhich permits recovery on a pro rata basis where the plaintiff\xe2\x80\x99s negligence does not exceed that of\nthe defendant, the assumption of the risk doctrine is nonetheless an available, although limited,\ndefense. As we noted in Keegan v. Anchor Inns, Inc., 606 F.2d 35 (3d Cir.1979), the assumption of\nthe risk doctrine \xe2\x80\x9cembraces two distinct concepts\xe2\x80\x94one akin to waiver or consent, the other a species\nof negligence.\xe2\x80\x9d To the extent that the assumption of risk doctrine involves a negligence theory, the\ndoctrine has been replaced by the Virgin Islands contributory negligence statute. To the extent that\nthe theory involves a consent or waiver principle, it remains a viable defense.\nIn Keegan, we explained that portion of the assumption of the risk theory which continues to\noperate as an absolute bar to recovery.\nAssumption of risk in its primary and strict sense involves voluntary exposure to\nan obvious or known danger which negates liability. Under this concept recovery\nis barred because the plaintiff is assumed to have relieved the defendant of any duty\nto protect him.\nThe defendant, who asserts the assumption of the risk defense in its primary sense, has the\nburden of demonstrating that no duty was owed plaintiff. Defendant can sustain its burden by\nproving that plaintiff knew of the risk, appreciated its character, and voluntarily chose to accept it.\nThe defendant must also demonstrate that the plaintiff\xe2\x80\x99s conduct in knowingly and voluntarily\nconfronting the risk was reasonable.\nThe defendant here claims that the jury\xe2\x80\x99s failure to find assumption of the risk was against the\nclear weight of the evidence\xe2\x80\xa6. The plaintiff admits that she was aware of the separate hazards which\n\n\x0cCASES & CRITIQUE\n\n215\n\ncontributed to her injuries: the lack of guardrails, the elevation of the skating surface, and the\ndifferent textures of the carpeted surface and the polyurethaned skating floor. The plaintiff\nmaintains, however, that the defendant is relying impermissibly on the assumption of the risk\ndoctrine in its secondary sense\xe2\x80\x94as a theory of negligence. The plaintiff also alleges that there is\nsufficient evidence to support the jury\xe2\x80\x99s verdict\xe2\x80\xa6.\nWhile the evidence does indicate that the plaintiff knew of the separate hazards, there is no\nevidence that the plaintiff knew of and appreciated how the various hazards could work in\ncombination. The majority speculates that the plaintiff must have known of the risk because she had\nwalked on the carpeted area with her skates and was aware, therefore, that the carpet slowed her rate\nof speed. The majority\xe2\x80\x99s speculation suggests only that the plaintiff was aware of the separate hazard\nof the carpeted area. It does not address the issue of the plaintiff\xe2\x80\x99s knowledge of the risk created by\nthe combined hazards\xe2\x80\xa6.\nIn addition, there is evidence in the record which tends to counter a finding of waiver or consent.\nThe plaintiff and her husband did ask Les Cooper, owner of the defendant skating rink, about the\nsafety of the rink in the absence of guardrails. They were told that the no-guardrail design was used\nfor safety reasons. In light of this representation, I cannot say that all reasonable people would\nconclude that the combined hazard was so obvious that the plaintiff assumed the risk and that the\ndefendant owed no duty to the plaintiff\xe2\x80\xa6.\nIn addition, there is evidence in the record which tends to counter a finding of waiver or consent.\nThe plaintiff and her husband did ask Les Cooper, owner of the defendant skating rink, about the\nsafety of the rink in the absence of guardrails. They were told that the no-guardrail design was used\nfor safety reasons. In light of this representation, I cannot say that all reasonable people would\nconclude that the combined hazard was so obvious that the plaintiff assumed the risk and that the\ndefendant owed no duty to the plaintiff.\nBecause there is room for doubt on the questions of the plaintiff\xe2\x80\x99s knowledge and understanding\nand the reasonableness of her conduct, we should not disturb the jury\xe2\x80\x99s verdict. I would find that\nthe district court did not err in denying the defendant\xe2\x80\x99s motion for a new trial on the basis of the\nassumption of the risk doctrine\xe2\x80\xa6.\n1.\n\nQUESTIONS\nThe Stakes: What result flows the court\xe2\x80\x99s conclusion that Smollett assumed the risk of\nher injuries? How would that result be different from a determination that she was\ncomparatively at fault? Which regime favors defendants?\n\n2.\n\nDead Heat: Is there anything about the Virgin Islands\xe2\x80\x99 comparative-fault statute that\nmight explain why the jury initially split the damages so cleanly down the middle?\n\n3.\n\nCheck Yo Self: By concluding that Smollett assumed the risk of her injuries, is the Third\nCircuit saying that she wasn\xe2\x80\x99t careless and partly at fault for the accident? Do you think\nshe was acting without reasonable care for her own safety?\nAVILA v. CITRUS COMMUNITY COLLEGE DISTRICT\nSupreme Court of California (2006)\n\nWerdegar, Justice:\n\n\xc3\xa3\n\nDuring an intercollegiate baseball game at a\ncommunity college, one of the home team\xe2\x80\x99s\nbatters is hit by a pitch. In the next half-inning,\nthe home team\xe2\x80\x99s pitcher allegedly retaliates with\nan inside pitch and hits a visiting batter in the\nhead. The visiting batter is injured, he sues, and\nthe courts must umpire the dispute.\n\n\xc3\xa3\n\nPhoca2004, Bean Ball (CC BY-NC-ND 2.0).\n\n\x0c216\n\nTORT LAW\n\nJose Luis Avila, a Rio Hondo Community College (Rio Hondo) student, played baseball for the\nRio Hondo Roadrunners. On January 5, 2001, Rio Hondo was playing a preseason road game against\nthe Citrus Community College Owls (Citrus College). During the game, a Roadrunners pitcher hit\na Citrus College batter with a pitch; when Avila came to bat in the top of the next inning, the Citrus\nCollege pitcher hit him in the head with a pitch, cracking his batting helmet. Avila alleges the pitch\nwas an intentional \xe2\x80\x9cbeanball\xe2\x80\x9d thrown in retaliation for the previous hit batter or, at a minimum, was\nthrown negligently.\nAvila staggered, felt dizzy, and was in pain. The Rio Hondo manager told him to go to first base.\nAvila did so, and when he complained to the Rio Hondo first base coach, he was told to stay in the\ngame. At second base, he still felt pain, numbness, and dizziness. A Citrus College player yelled to\nthe Rio Hondo dugout that the Roadrunners needed a pinch runner. Avila walked off the field and\nwent to the Rio Hondo bench. No one tended to his injuries. As a result, Avila suffered unspecified\nserious personal injuries.\nAvila sued both schools, his manager, the helmet manufacturer, and various other entities and\norganizations. Only the claims against the Citrus Community College District (the District) are\nbefore us. Avila alleged that the District was negligent in failing to summon or provide medical care\nfor him when he was obviously in need of it, failing to supervise and control the Citrus College\npitcher, failing to provide umpires or other supervisory personnel to control the game and prevent\nretaliatory or reckless pitching, and failing to provide adequate equipment to safeguard him from\nserious head injury. Avila also alleged that the District acted negligently by failing to take reasonable\nsteps to train and supervise its managers, trainers, employees, and agents in providing medical care\nto injured players and by conducting an illegal preseason game in violation of community college\nbaseball rules designed to protect participants such as Avila.\nThe District demurred, contending it\xe2\x80\xa6owed no duty of care to Avila. The trial court sustained\nthe demurrer and dismissed the action against the District. A divided Court of Appeal reversed\xe2\x80\xa6.\nWe granted the District\xe2\x80\x99s petition for review to\xe2\x80\xa6address the extent of a college\xe2\x80\x99s duty in these\ncircumstances\xe2\x80\xa6.\nTo recover for negligence, Avila must demonstrate, inter alia, that the District breached a duty\nof care it owed him. Generally, each person has a duty to exercise reasonable care in the\ncircumstances and is liable to those injured by the failure to do so\xe2\x80\xa6.\nThe existence of duty is not an immutable fact of nature but only an expression of the sum total\nof those considerations of policy which lead the law to say that the particular plaintiff is entitled to\nprotection. Thus, the existence and scope of a defendant\xe2\x80\x99s duty is an issue of law, to be decided by a\ncourt not a jury. When the injury is to a sporting participant, the considerations of policy and the\nquestion of duty necessarily become intertwined with the question of assumption of risk.\nThe traditional version of the assumption of risk doctrine required proof that the plaintiff\nvoluntarily accepted a specific known and appreciated risk. The doctrine depended on the actual\nsubjective knowledge of the given plaintiff and, where the elements were met, was an absolute\ndefense to liability for injuries arising from the known risk.\nCalifornia\xe2\x80\x99s abandonment of the doctrine of contributory negligence in favor of comparative\nnegligence led to a reconceptualization of the assumption of risk\xe2\x80\xa6. [T]here are in fact two species of\nassumption of risk: primary and secondary. Primary assumption of the risk arises when, as a matter\nof law and policy, a defendant owes no duty to protect a plaintiff from particular harms.1 Applied in\nthe sporting context, it precludes liability for injuries arising from those risks deemed inherent in a\nsport; as a matter of law, others have no legal duty to eliminate those risks or otherwise protect a\nsports participant from them. Under this duty approach, a court need not ask what risks a particular\nplaintiff subjectively knew of and chose to encounter, but instead must evaluate the fundamental\nnature of the sport and the defendant\xe2\x80\x99s role in or relationship to that sport in order to determine\nwhether the defendant owes a duty to protect a plaintiff from the particular risk of harm\xe2\x80\xa6.\n\n1\n\nSecondary assumption of the risk arises when the defendant still owes a duty of care, but the plaintiff knowingly\nencounters the risks attendant on the defendant\xe2\x80\x99s breach of that duty. We deal here with an issue of primary, not secondary,\nassumption of the risk.\n\n\x0cCASES & CRITIQUE\n\n217\n\nHere, the host school\xe2\x80\x99s role is a mixed one: its players are coparticipants, its coaches and\nmanagers have supervisorial authority over the conduct of the game, and other representatives of\nthe school are responsible for the condition of the playing facility. We have previously established\nthat coparticipants have a duty not to act recklessly, outside the bounds of the sport, and coaches\nand instructors have a duty not to increase the risks inherent in sports participation; we also have\nnoted in dicta that those responsible for maintaining athletic facilities have a similar duty not to\nincrease the inherent risks, albeit in the context of businesses selling recreational opportunities. In\ncontrast, those with no relation to the sport have no such duty.\nIn interscholastic and intercollegiate competition, the host school is not a disinterested,\nuninvolved party vis-a-vis the athletes it invites to compete on its grounds. Without a visiting team,\nthere can be no competition. Intercollegiate competition allows a school to, on the smallest scale,\noffer its students the benefits of athletic participation and, on the largest scale, reap the economic\nand marketing benefits that derive from maintenance of a major sports program. These benefits\njustify removing a host school from the broad class of those with no connection to a sporting contest\nand no duty to the participants. In light of those benefits, we hold that in interscholastic and\nintercollegiate competition, the host school and its agents owe a duty to home and visiting players\nalike to, at a minimum, not increase the risks inherent in the sport. Schools and universities are\nalready vicariously liable for breaches by the coaches they employ, who owe a duty to their own\nathletes not to increase the risks of sports participation. No reason appears to conclude\nintercollegiate athletics will be harmed by making visiting players, necessary coparticipants in any\ngame, additional beneficiaries of the limited duty not to increase the risks of participation. Thus, we\ndisagree with the Court of Appeal dissent, which argued that the District is little more than a passive\nprovider of facilities and therefore should have no obligation to visiting players.\nWe consider next whether Avila has alleged facts supporting breach of the duty not to enhance\nthe inherent risks of his sport. Though it numbers them differently, Avila\xe2\x80\x99s complaint in essence\nalleges four ways in which the District breached a duty to Avila by: (1) conducting the game at all;\n(2) failing to control the Citrus College pitcher; (3) failing to provide umpires to supervise and\ncontrol the game; and (4) failing to provide medical care. The District\xe2\x80\x99s demurrer was properly\nsustained if, and only if, each of these alleged breaches, assumed to be true, falls outside any duty\nowed by the District and within the inherent risks of the sport assumed by Avila.\nWith respect to the first of these, conducting the game, Avila cites unspecified \xe2\x80\x9ccommunity\ncollege baseball rules\xe2\x80\x9d prohibiting preseason games. But the only consequence of the District\xe2\x80\x99s\nhosting the game was that it exposed Avila, who chose to participate, to the ordinary inherent risks\nof the sport of baseball. Nothing about the bare fact of the District\xe2\x80\x99s hosting the game enhanced\nthose ordinary risks, so its doing so, whether or not in violation of the alleged rules, does not\nconstitute a breach of its duty not to enhance the ordinary risks of baseball. Nor did the District owe\nany separate duty to Avila not to host the game.\nThe second alleged breach, the failure to supervise and control the Citrus College pitcher, is\nbarred by primary assumption of the risk. Being hit by a pitch is an inherent risk of baseball. The\ndangers of being hit by a pitch, often thrown at speeds approaching 100 miles per hour, are apparent\nand well known: being hit can result in serious injury or, on rare tragic occasions, death.2\nBeing intentionally hit is likewise an inherent risk of the sport, so accepted by custom that a pitch\nintentionally thrown at a batter has its own terminology: \xe2\x80\x9cbrushback,\xe2\x80\x9d \xe2\x80\x9cbeanball,\xe2\x80\x9d \xe2\x80\x9cchin music.\xe2\x80\x9d In\nturn, those pitchers notorious for throwing at hitters are \xe2\x80\x9cheadhunters.\xe2\x80\x9d Pitchers intentionally throw\nat batters to disrupt a batter\xe2\x80\x99s timing or back him away from home plate, to retaliate after a teammate\nhas been hit, or to punish a batter for having hit a home run. Some of the most respected baseball\nmanagers and pitchers have openly discussed the fundamental place throwing at batters has in their\nsport. In George Will\xe2\x80\x99s study of the game, Men at Work, one-time Oakland Athletics and current St.\nLouis Cardinals manager Tony La Russa details the strategic importance of ordering selective\nintentional throwing at opposing batters, principally to retaliate for one\xe2\x80\x99s own players being hit. As\nLos Angeles Dodgers Hall of Fame pitcher Don Drysdale and New York Giants All Star pitcher Sal\n2\nMost famously, in August 1920, Cleveland Indians shortstop Roy Chapman was hit by a pitch from the New York\nYankees\xe2\x80\x99 Carl Mays. He died the next day. At least seven other batters in organized baseball have been killed by pitches.\n\n\x0c218\n\nTORT LAW\n\n\xe2\x80\x9cThe Barber\xe2\x80\x9d Maglie have explained, intentionally throwing at batters can also be an integral part of\npitching tactics, a tool to help get batters out by upsetting their frame of mind.3 Drysdale and Maglie\nare not alone; past and future Hall of Famers, from Early Wynn and Bob Gibson to Pedro Martinez\nand Roger Clemens, have relied on the actual or threatened willingness to throw at batters to aid\ntheir pitching. Yankees Aced by Red Sox, L.A. Times (May 31, 2001) (relating Martinez\xe2\x80\x99s assertion\nthat he would even throw at Babe Ruth).\nWhile these examples relate principally to professional baseball, there is nothing legally\nsignificant about the level of play in this case. The laws of physics that make a thrown baseball\ndangerous and the strategic benefits that arise from disrupting a batter\xe2\x80\x99s timing are only minimally\ndependent on the skill level of the participants, and we see no reason to distinguish between\ncollegiate and professional baseball in applying primary assumption of the risk.\nIt is true that intentionally throwing at a batter is forbidden by the rules of baseball. But even\nwhen a participant\xe2\x80\x99s conduct violates a rule of the game and may subject the violator to internal\nsanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter\nfundamentally the nature of the sport by deterring participants from vigorously engaging in activity\nthat falls close to, but on the permissible side of, a prescribed rule. It is one thing for an umpire to\npunish a pitcher who hits a batter by ejecting him from the game, or for a league to suspend the\npitcher; it is quite another for tort law to chill any pitcher from throwing inside, i.e., close to the\nbatter\xe2\x80\x99s body\xe2\x80\x94a permissible and essential part of the sport\xe2\x80\x94for fear of a suit over an errant pitch.\nFor better or worse, being intentionally thrown at is a fundamental part and inherent risk of the\nsport of baseball.4 It is not the function of tort law to police such conduct\xe2\x80\xa6.\n[A]n athlete does not assume the risk of a coparticipant\xe2\x80\x99s intentional or reckless conduct totally\noutside the range of the ordinary activity involved in the sport. Here, even if the Citrus College\npitcher intentionally threw at Avila, his conduct did not fall outside the range of ordinary activity\ninvolved in the sport. The District owed no duty to Avila to prevent the Citrus College pitcher from\nhitting batters, even intentionally. Consequently, the doctrine of primary assumption of the risk bars\nany claim predicated on the allegation that the Citrus College pitcher negligently or intentionally\nthrew at Avila.\nThe dissent suggests primary assumption of the risk should not extend to an intentional tort\nsuch as battery and that Avila should have been granted leave to amend to allege a proper battery\nclaim. Amendment would have been futile. Absence of consent is an element of battery. One who\nenters into a sport, game or contest may be taken to consent to physical contacts consistent with the\nunderstood rules of the game. Knight v. Jewett, 834 P.2d 696 (Cal. 1992) (\xe2\x80\x9cIt may be accurate to\nsuggest that an individual who voluntarily engages in a potentially dangerous activity or sport\n\xe2\x80\x98consents to\xe2\x80\x99 or \xe2\x80\x98agrees to assume\xe2\x80\x99 the risks inherent in the activity\xe2\x80\x9d); Ritchie-Gamester v. City of\nBerkley, 597 N.W.2d 517 (Mich. 1999) (\xe2\x80\x9cThe act of stepping onto the field may be described as\n\xe2\x80\x98consent to the inherent risks of the activity.\xe2\x80\x99\xe2\x80\x9d) Thus, the boxer who steps into the ring consents to\nhis opponent\xe2\x80\x99s jabs; the football player who steps onto the gridiron consents to his opponent\xe2\x80\x99s hard\ntackle; the hockey goalie who takes the ice consents to face his opponent\xe2\x80\x99s slapshots; and, here, the\nbaseball player who steps to the plate consents to the possibility the opposing pitcher may throw\nnear or at him. The complaint establishes Avila voluntarily participated in the baseball game; as\nsuch, his consent would bar any battery claim as a matter of law.\nThe third way in which Avila alleges the District breached its duty of care, by failing to provide\numpires, likewise did not increase the risks inherent in the game. Baseball may be played with\numpires, as between professionals at the World Series, or without, as between children in the sandlot.\nAvila argues that providing umpires would have made the game safer, because an umpire might have\n3\n\nAs Maglie explained the strategy: \xe2\x80\x9cYou have to make the batter afraid of the ball or, anyway, aware that he can get hurt.\nA good time is when the count is two balls and two strikes. He\xe2\x80\x99s looking to swing. You knock him down then and he gets up\nshaking. Now throw a curve to him and you have your out.\xe2\x80\x9d Maglie\xe2\x80\x99s nickname is attributed to his propensity for shaving\nbatters\xe2\x80\x99 chins with his pitches. Similarly for Drysdale: \xe2\x80\x9cThe knockdown pitch upsets a hitter\xe2\x80\x99s timing, like a change-up. It\xe2\x80\x99s\nnot a weapon. It\xe2\x80\x99s a tactic.\xe2\x80\x9d\n4\nThe conclusion that being intentionally hit by a pitch is an inherent risk of baseball extends only to situations such as\nthat alleged here, where the hit batter is at the plate. Allegations that a pitcher intentionally hit a batter who was still in the\non deck circle, or elsewhere, would present an entirely different scenario.\n\n\x0cCASES & CRITIQUE\n\n219\n\nissued a warning and threatened ejections after the first batter was hit. Whatever the likelihood of this\nhappening and the difficulty of showing causation, the argument overlooks a key point. The District\nowed a duty not to increase the risks inherent in the sport, not a duty to decrease the risks. While the\nprovision of umpires might\xe2\x80\x94might\xe2\x80\x94have reduced the risk of a retaliatory beanball, Avila has alleged\nno facts supporting imposition of a duty on the District to reduce that risk.\nFinally, Avila alleges that the District breached a duty to him by failing to provide medical care\nafter he was injured\xe2\x80\xa6. [H]e argues that because the District placed him in peril through the actions\nof the Citrus College pitcher, it had a duty to ensure he received medical attention.\nIn some circumstances, the common law imposes a duty on those who injure others to mitigate\nthe resulting harm\xe2\x80\xa6. [A]n actor who knows or has reason to know that by his conduct, whether\ntortious or innocent, he has caused such bodily harm to another as to make him helpless and in\ndanger of further harm is under a duty to exercise reasonable care to prevent such further harm. In\nBrooks v. E. J. Willig Truck Transp. Co., 255 P.2d 802 (1953), we recognized and applied this\nprinciple, holding in the context of a hit-and-run death that \xe2\x80\x9cone who negligently injures another\nand renders him helpless is bound to use reasonable care to prevent any further harm which the\nactor realizes or should realize threatens the injured person.\xe2\x80\x9d\nAvila\xe2\x80\x99s proposed extension of Brooks to this case encounters at least three main difficulties. First,\nAvila has not alleged a basis on which to conclude the District caused his injury. Universities\nordinarily are not vicariously liable for the actions of their student-athletes during competition.\nWhile Avila argues the District should be responsible for the Citrus College pitcher\xe2\x80\x99s conduct if the\nCitrus College coaches ordered or condoned a retaliatory pitch, the complaint notably lacks any\nallegation they did so.\nSecond, even if Avila might have amended his complaint to add such an allegation, Brooks and\nthe common law duty it recognizes are confined to situations where the injured party is helpless.\nThe complaint establishes that Avila was able to make it to first and then second base under his own\npower, and was able to alert his own first base coach to his condition. These allegations cast serious\ndoubt on whether Avila was sufficiently helpless so as to warrant imposing a [Brooks-type] duty on\nthe District.\nThird, even if we were to impose a duty, the face of the complaint establishes that Avila\xe2\x80\x99s own\nRio Hondo coaches and trainers were present. They, not Citrus College\xe2\x80\x99s coaches, had exclusive\nauthority to determine whether Avila needed to be removed from the game for a pinch runner in\norder to receive medical attention.5 Likewise, to the extent Avila argues a Citrus-College-provided\numpire could have insisted Avila receive medical treatment, there is no basis for concluding a home\nteam umpire would have been authorized to overrule the medical judgments of Rio Hondo\xe2\x80\x99s\ntrainers. Thus, even if the District were responsible for causing Avila\xe2\x80\x99s injury, at most it would have\nhad a duty to ensure that Avila\xe2\x80\x99s coaches and trainers were aware he had been injured so they could\ndecide how best to attend to him. The complaint indicates Avila alerted his own first base coach to\nhow he was feeling, and when he arrived at second base, a Citrus College player, recognizing Avila\nwas injured, alerted the Rio Hondo bench, at which point Rio Hondo removed Avila from the game.\nIf the District had a duty, it satisfied that duty. In the possibly apocryphal words of New York\nYankees catcher Yogi Berra, \xe2\x80\x9cIt ain\xe2\x80\x99t over till it\xe2\x80\x99s over,\xe2\x80\x9d but this means that for Avila\xe2\x80\x99s complaint\nagainst Citrus College, it\xe2\x80\x99s over.\nKennard, Justice, concurring and dissenting:\n\xe2\x80\xa6[T]he majority holds that a baseball pitcher owes no duty to refrain from intentionally\nthrowing a baseball at an opposing player\xe2\x80\x99s head. This is a startling conclusion. It is contrary to the\nofficial view in the sport that such conduct \xe2\x80\x9cshould be\xe2\x80\x94and is\xe2\x80\x94condemned by everybody.\xe2\x80\x9d Official\nRules of Major League Baseball, rule 8.02(d).\nCentral to the majority\xe2\x80\x99s holding is its reliance on the legal rule that there is no duty to avoid\nrisks \xe2\x80\x9cinherent\xe2\x80\x9d in a recreational sport\xe2\x80\xa6. Unlike good wine, this rule has not improved with age. I\nhave repeatedly voiced my disagreement with this court\xe2\x80\x99s adoption of that rule, which is tearing at\n5\nAny departure from this rule would lead to chaos, as teams asserted a legal duty to remove their opponents\xe2\x80\x99 \xe2\x80\x9cinjured\xe2\x80\x9d\nstar players from competition in order to evaluate them and provide any necessary medical care.\n\n\x0c220\n\nTORT LAW\n\nthe fabric of tort law because it distorts the negligence concept of due care to encompass reckless\nand intentional conduct. Moreover, because the question of what is \xe2\x80\x9cinherent\xe2\x80\x9d in a sport is\namorphous and fact-intensive, it is impossible for trial courts to discern, at an early stage in the\nproceedings, which risks are inherent in a given sport. As explained below, this case illustrates that\nthe no-duty-for-sports rule is unworkable and unfair\xe2\x80\xa6.\nThe first, third, and fourth of the legal theories alleged in Avila\xe2\x80\x99s complaint can be disposed of\nwithout resort to the no-duty-for-sports rule. Avila\xe2\x80\x99s first theory of liability (that the District conducted\nan illegal preseason game) fails because, as the majority explains, the District did not breach any duty\nto Avila by conducting the game, irrespective of whether community college rules permitted it to be\nplayed. Avila\xe2\x80\x99s third theory (that the District failed to provide umpires) must be rejected because\nbaseball games are often played without umpires, and there is no reason to impose on community\ncolleges a duty to provide them. And Avila\xe2\x80\x99s fourth theory (that the District failed to provide medical\ncare) fails because, as the majority points out, the District had no duty to provide medical care when\nAvila\xe2\x80\x99s team came equipped with its own trainers, who were present to treat his injuries.\nAvila\xe2\x80\x99s second theory of liability (that the District failed to supervise and control the Citrus\npitcher) presents a more difficult question. As the majority notes, colleges \xe2\x80\x9cordinarily are not\nvicariously liable for the actions of their student-athletes during competition.\xe2\x80\x9d Although Avila now\nargues that the District would be liable if its coaches ordered or allowed a retaliatory pitch aimed at\nAvila\xe2\x80\x99s head, his complaint does not expressly allege that they did so. Thus, his failure to do so\njustifies the trial court\xe2\x80\x99s decision to sustain the District\xe2\x80\x99s demurrer. But the trial court should have\ngiven Avila at least one opportunity to amend his original complaint to include such an allegation.\nThe majority, however, upholds the trial court\xe2\x80\x99s sustaining of the District\xe2\x80\x99s demurrer without\nleave to amend. Relying on the no-duty-for-sports rule, the majority, in essence, concludes that even\nif the District\xe2\x80\x99s coaches had ordered the Citrus pitcher to hit Avila in the head with a pitched ball,\nthe District is not liable for Avila\xe2\x80\x99s injuries because the risk that a batter will be injured by a pitch\nintentionally thrown at his head is \xe2\x80\x9can inherent risk of the sport.\xe2\x80\x9d According to the majority, \xe2\x80\x9c[s]ome\nof the most respected baseball managers and pitchers have openly discussed the fundamental place\n[that] throwing at batters has in their sport.\xe2\x80\x9d The majority acknowledges that those comments were\nmade in the context of professional baseball. The majority then proceeds to hold that throwing at\nbatters is a risk as inherent in college baseball as it is in professional baseball. My concerns are\nthreefold.\nFirst, the determination whether being hit by a pitched ball intentionally aimed at one\xe2\x80\x99s head is\nan inherent risk of baseball, whether professional or intercollegiate, is a question of fact to be\ndetermined in the trial court\xe2\x80\xa6. Here, the trial court never heard, and thus never considered, the\ncomments from professional baseball managers and pitchers on which the majority relies; indeed,\nnot only did the District offer no evidence on this issue, but the District did not even argue that\nAvila\xe2\x80\x99s complaint was barred by the no-duty-for-sports rule. Undeterred, the majority has done its\nown research and made its own factual findings on this issue, thus invading the province of the trial\ncourt. I recognize that this court must take judicial notice of facts and propositions of generalized\nknowledge that are so universally known that they cannot reasonably be the subject of dispute. But\nthe majority\xe2\x80\x99s assertion that intentionally throwing a ball at a batter\xe2\x80\x99s head is inherent in\nintercollegiate baseball is not a fact so \xe2\x80\x9cuniversally known\xe2\x80\x9d that it cannot reasonably be the subject\nof dispute.\nHad Avila been given the opportunity in the trial court, he might well have called expert\nwitnesses who could have refuted the majority\xe2\x80\x99s factual determination that aiming at a batter\xe2\x80\x99s head\nis inherent in professional baseball. And he could have pointed to the official comments\naccompanying Major League Baseball\xe2\x80\x99s rule 8.02(d), which prohibits pitchers from trying to hit the\nbatter: \xe2\x80\x9cTo pitch at a batter\xe2\x80\x99s head is unsportsmanlike and highly dangerous. It should be\xe2\x80\x94and is\xe2\x80\x94\ncondemned by everybody. Umpires should act without hesitation in enforcement of this rule.\xe2\x80\x9d\nAlternatively, Avila could have called expert witnesses to refute the majority\xe2\x80\x99s finding, which is\nunsupported by any citation of authority, that the conduct in question is as inherent in\nintercollegiate baseball as it is in professional baseball. And he could have pointed out that, unlike\nthe rules of professional baseball, the rules of the National Collegiate Athletic Association provide\nthat a pitcher who intentionally throws at a batter is not only ejected from the game in which the\n\n\x0cCASES & CRITIQUE\n\n221\n\npitch was thrown, but is also suspended for the team\xe2\x80\x99s next four games, and a pitcher who\nintentionally throws at a batter on three occasions must be suspended for the remainder of the\nseason. (Nat. Collegiate Athletic Assn., NCAA Baseball Rules (Dec. 2005) rule 5, \xc2\xa7 16(d).)\nI turn to my second concern\xe2\x80\xa6. [T]he majority imposes on trial courts the obligation to decide\xe2\x80\x94\nin ruling on a demurrer\xe2\x80\x94a question of fact: that is, whether a particular sports injury arises from an\nactivity inherent in the game. Questions of fact cannot be decided on demurrer, however; they must\nbe decided on summary judgment or at trial. Thus, the no-duty-for-sports rule is unworkable\nbecause it forces trial courts to decide questions of fact at the demurrer stage when the only method\navailable to them is suitable only for deciding questions of law.\nMy third concern is that the majority\xe2\x80\x99s application of the no-duty-for-sports rule to include\npitches intentionally thrown at a batter\xe2\x80\x99s head is an ill-conceived expansion of that rule into\nintentional torts. In Knight, the plaintiff alleged only that the defendant acted negligently, and the\nplurality there justified the no-duty-for-sports rule with the comment that a baseball player should\nnot be held liable \xe2\x80\x9cfor an injury resulting from a carelessly thrown ball or bat during a baseball game.\xe2\x80\x9d\nHere, however, the majority applies that rule to hold that the trial court properly sustained the\nDistrict\xe2\x80\x99s demurrer to Avila\xe2\x80\x99s cause of action alleging an intentional tort, in which he alleged that the\npitch that hit him \xe2\x80\x9cwas thrown in a deliberate retaliatory fashion, with reckless disregard for the\nsafety of plaintiff.\xe2\x80\x9d Even if I were to accept the majority\xe2\x80\x99s misguided no-duty-for-sports rule, I would\napply it only to causes of action for negligence, not for intentional torts.\nI would analyze Avila\xe2\x80\x99s claim under the traditional doctrine of assumption of risk. Under that\ndoctrine, the pertinent inquiry is not what risk is inherent in a particular sport; rather, it is what risk\nthe plaintiff consciously and voluntarily assumed. That issue, as I explained earlier, is not one\ninvolving a duty of care owed to another, to be resolved on demurrer; rather, it is an affirmative\ndefense, to be resolved on summary judgment or at trial.\nUnder traditional assumption-of-risk analysis, sports participants owe each other a duty to\nrefrain from unreasonably risky conduct that may cause harm. Intentionally hitting another person\nin the head with a hard object thrown at a high speed is highly dangerous and is potentially tortious,\nno matter whether the object is a ball thrown on a baseball field or is a rock thrown on a city street.\nThus, if the District here was complicit in a decision by the pitcher to hit Avila in the head with the\nbaseball, it may be held liable for Avila\xe2\x80\x99s injuries if Avila did not assume the risk that the pitcher\nwould hit him in this manner. But, as I explained earlier, Avila has thus far not alleged that coaches\nemployed by the District either advised or condoned any such act. Thus, the trial court properly\nsustained the District\xe2\x80\x99s demurrer; but Avila should be given leave to amend his original complaint\nto allege that the District was legally responsible for the pitcher\xe2\x80\x99s decision to aim the baseball at\nAvila\xe2\x80\x99s head.\nIf Avila were to amend his complaint to allege the District\xe2\x80\x99s complicity in the pitcher\xe2\x80\x99s decision\nto hit him in the head with the baseball, the District should be permitted to deny liability on the\nground that Avila assumed the risk of an intentional hit in the head during the game: that is, he\nvoluntarily accepted that risk with knowledge and appreciation of that risk. Whether Avila assumed\nthat risk is a question of fact that has no bearing on the District\xe2\x80\x99s duty of care toward Avila\xe2\x80\xa6.\n1.\n\nQUESTIONS\nAssuming Risks: What\xe2\x80\x99s the difference between primary and secondary assumption of\nrisk? And how do they both differ from the assumption of risk raised by Jones and\nDalury? Can multiple types of assumption of risk be relevant in a single case?\n\n2.\n\nBeanball: How can conduct both violate a sport\xe2\x80\x99s rules and be an inherent risk of that\nsport? And how do we decide if a risk is inherent? Does the level of play matter? What if\nthis had happened six years earlier, when Avila was playing in a Little League game?\n\n3.\n\nKarma\xe2\x80\x99s a Pitch: Does it matter why the Roadrunners pitcher threw the beanball? What\nif he threw it because his boyfriend recently cheated on him with Avila?\n\n\x0c222\n\nCHAPTER\n\nTORT LAW\n\n5:\n\nSTRICT LIABILITY\n\nA. Ultrahazardous Activities\nRYLANDS v. FLETCHER\nHouse of Lords (1868)\nCairns, Lord Chancellor:\nMy Lords, in this case the Plaintiff\xe2\x80\xa6is the occupier of a mine and\nworks under a close of land. The Defendants are the owners of a mill\nin his neighbourhood, and they proposed to make a reservoir for the\npurpose of keeping and storing water to be used about their mill upon\nanother close of land, which, for the purposes of this case, may be taken\nas being adjoining to the close of the Plaintiff, although, in point of fact,\nsome intervening land lay between the two. Underneath the close of\nland of the Defendants on which they proposed to construct their\nreservoir there were certain old and disused mining passages and\nworks. There were five vertical shafts, and some horizontal shafts\ncommunicating with them. The vertical shafts had been filled up with\nsoil and rubbish, and it does not appear that any person was aware of the existence either of the\nvertical shafts or of the horizontal works communicating with them. In the course of the working\nby the Plaintiff of his mine, he had gradually worked through the seams of coal underneath the close,\nand had come into contact with the old and disused works underneath the close of the Defendants.\nIn that state of things the reservoir of the Defendants was constructed. It was constructed by\nthem through the agency and inspection of an engineer and contractor. Personally, the Defendants\nappear to have taken no part in the works, or to have been aware of any want of security connected\nwith them. As regards the engineer and the contractor, we must take it from the case that they did\nnot exercise, as far as they were concerned, that reasonable care and caution which they might have\nexercised, taking notice, as they appear to have taken notice, of the vertical shafts filled up in the\nmanner which I have mentioned. However, my Lords, when the reservoir was constructed, and\nfilled, or partly filled, with water, the weight of the water bearing upon the disused and imperfectly\nfilled-up vertical shafts, broke through those shafts. The water passed down them and into the\nhorizontal workings, and from the horizontal workings under the close of the Defendants it passed\non into the workings under the close of the Plaintiff, and flooded his mine, causing considerable\ndamage, for which this action was brought.\nThe Court of Exchequer, when the special case stating the facts to which I have referred, was\nargued, was of opinion that the Plaintiff had established no cause of action. The Court of Exchequer\nChamber, before which an appeal from this judgment was argued, was of a contrary opinion, and\nthe Judges there unanimously arrived at the conclusion that there was a cause of action, and that the\nPlaintiff was entitled to damages.\nMy Lords, the principles on which this case must be determined appear to me to be extremely\nsimple. The Defendants, treating them as the owners or occupiers of the close on which the reservoir\nwas constructed, might lawfully have used that close for any purpose for which it might in the\nordinary course of the enjoyment of land be used; and if, in what I may term the natural user of that\nland, there had been any accumulation of water, either on the surface or underground, and if, by the\noperation of the laws of nature, that accumulation of water had passed off into the close occupied\nby the Plaintiff, the Plaintiff could not have complained that that result had taken place. If he had\ndesired to guard himself against it, it would have lain upon him to have done so, by leaving, or by\ninterposing, some barrier between his close and the close of the Defendants in order to have\nprevented that operation of the laws of nature\xe2\x80\xa6.\nOn the other hand if the Defendants, not stopping at the natural use of their close, had desired to\nuse it for any purpose which I may term a non-natural use, for the purpose of introducing into the\nclose that which in its natural condition was not in or upon it, for the purpose of introducing water\neither above or below ground in quantities and in a manner not the result of any work or operation\non or under the land\xe2\x80\x94and if in consequence of their doing so, or in consequence of any imperfection\n\n\x0cCASES & CRITIQUE\n\n223\n\nin the mode of their doing so, the water came to escape and to pass off into the close of the Plaintiff,\nthen it appears to me that that which the Defendants were doing they were doing at their own peril;\nand, if in the course of their doing it, the evil arose to which I have referred, the evil, namely, of the\nescape of the water and its passing away to the close of the Plaintiff and injuring the Plaintiff, then for\nthe consequence of that, in my opinion, the Defendants would be liable\xe2\x80\xa6. My Lords, these simple\nprinciples, if they are well founded, as it appears to me they are, really dispose of this case.\nThe same result is arrived at on the principles referred to by Mr. Justice Blackburn in his\njudgment, in the Court of Exchequer Chamber, where he states the opinion of that Court as to the\nlaw in these words:\nWe think that the true rule of law is, that the person who, for his own purposes,\nbrings on his land and collects 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 prima facie\nanswerable for all the damage which is the natural consequence of its escape. He\ncan excuse himself by shewing that the escape was owing to the Plaintiff\xe2\x80\x99s default;\nor, perhaps, that the escape was the consequence of vis major, or the act of God;\nbut as nothing of this sort exists here, it is unnecessary to inquire what excuse\nwould be sufficient. The general rule, as above stated, seems on principle just. The\nperson whose grass or corn is eaten down by the escaping cattle of his neighbour,\nor whose mine is flooded by the water from his neighbour\xe2\x80\x99s reservoir, or whose\ncellar is invaded by the filth of his neighbour\xe2\x80\x99s privy, or whose habitation is made\nunhealthy by the fumes and noisome vapours of his neighbour\xe2\x80\x99s alkali works, is\ndamnified without any fault of his own; and it seems but reasonable and just that\nthe neighbour who has brought something on his own property (which was not\nnaturally there), harmless to others so long as it is confined to his own property,\nbut which he knows will be mischievous if it gets on his neighbour\xe2\x80\x99s, should be\nobliged to make good the damage which ensues if he does not succeed in confining\nit to his own property. But for his act in bringing it there no mischief could have\naccrued, and it seems but just that he should at his peril keep it there, so that no\nmischief may accrue, or answer for the natural and anticipated consequence. And\nupon authority this we think is established to be the law, whether the things so\nbrought be beasts, or water, or filth, or stenches.\nMy Lords, in that opinion, I must say I entirely concur. Therefore, I have to move your\nLordships that the judgment of the Court of Exchequer Chamber be affirmed, and that the present\nappeal be dismissed with costs.\nCranworth, Lord, concurring:\nMy Lords, I concur with my noble and learned friend in thinking that the rule of law was\ncorrectly stated by Mr. Justice Blackburn in delivering the opinion of the Exchequer Chamber. If a\nperson brings, or accumulates, on his land anything which, if it should escape, may cause damage to\nhis neighbour, he does so at his peril. If it does escape, and cause damage, he is responsible, however\ncareful he may have been, and whatever precautions he may have taken to prevent the damage. In\nconsidering whether a Defendant is liable to a Plaintiff for damage which the Plaintiff may have\nsustained, the question in general is not whether the Defendant has acted with due care and caution,\nbut whether his acts have occasioned the damage\xe2\x80\xa6. [T]he doctrine is founded on good sense. For\nwhen one person, in managing his own affairs, causes, however innocently, damage to another, it is\nobviously only just that he should be the party to suffer. He is bound\xe2\x80\xa6.\n1.\n\nQUESTIONS\nPingaro Revisited: How is Rylands like Pingaro? How is it different?\n\n2.\n\nLeffler Revisited: How is Rylands like Leffler? How is it different?\n\n3.\n\nMenlove Revisited: Could Menlove have been decided on similar grounds to Rylands?\nAre spontaneously combusting haystacks like leaky reservoirs?\n\n\x0c224\n\nTORT LAW\n\nKLEIN v. PYRODYNE CORP.\nSupreme Court of Washington (1991)\nGuy, Justice:\nThe plaintiffs in this case are persons injured when\nan aerial shell at a public fireworks exhibition went\nastray and exploded near them. The defendant is the\npyrotechnic company hired to set up and discharge\nthe fireworks. The issue before this court is whether\npyrotechnicians are strictly liable for damages caused\nby fireworks displays. We hold that they are.\nDefendant Pyrodyne Corporation (Pyrodyne) is a\ngeneral contractor for aerial fireworks at public\nfireworks displays. Pyrodyne contracted to procure\nfireworks, to provide pyrotechnic operators, and to display the fireworks at the Western Washington\nState Fairgrounds in Puyallup, Washington, on July 4, 1987. All operators of the fireworks display\nwere Pyrodyne employees acting within the scope of their employment duties.\nAs required by Washington statute, Pyrodyne purchased a $1 million insurance policy prior to\nthe fireworks show. The policy provided $1 million coverage for each occurrence of bodily injury or\nproperty damage liability. Plaintiffs allege that Pyrodyne failed to carry out a number of the other\nstatutory and regulatory requirements in preparing for and setting off the fireworks. For example,\nthey allege that Pyrodyne failed to properly bury the mortar tubes prior to detonation, failed to\nprovide a diagram of the display and surrounding environment to the local government, failed to\nprovide crowd control monitors, and failed to keep the invitees at the mandated safe distance.\nDuring the fireworks display, one of the 5-inch mortars was knocked into a horizontal position.\nFrom this position an aerial shell inside was ignited and discharged. The shell flew 500 feet in a\ntrajectory parallel to the earth and exploded near the crowd of onlookers. Plaintiffs Danny and\nMarion Klein were injured by the explosion. Mr. Klein\xe2\x80\x99s clothing was set on fire, and he suffered\nfacial burns and serious injury to his eyes.\nThe parties provide conflicting explanations of the cause of the improper horizontal discharge\nof the shell. Pyrodyne argues that the accident was caused by a 5-inch shell detonating in its\naboveground mortar tube without ever leaving the ground. Pyrodyne asserts that this detonation\ncaused another mortar tube to be knocked over, ignited, and shot off horizontally. In contrast, the\nKleins contend that the misdirected shell resulted because Pyrodyne\xe2\x80\x99s employees improperly set up\nthe display. They further note that because all of the evidence exploded, there is no means of proving\nthe cause of the misfire.\nThe Kleins brought suit against Pyrodyne under [a theory of] strict liability\xe2\x80\xa6. The trial court\ndenied Pyrodyne\xe2\x80\x99s summary judgment motion regarding the Kleins\xe2\x80\x99 strict liability claim, holding\nthat Pyrodyne was strictly liable without fault and ordering summary judgment in favor of the Kleins\non the issue of liability\xe2\x80\xa6. Pyrodyne is appealing solely as to the trial court\xe2\x80\x99s holding that strict\nliability is the appropriate standard of liability for pyrotechnicians\xe2\x80\xa6.\nI. Fireworks Displays as Abnormally Dangerous Activities\nThe Kleins contend that strict liability is the appropriate standard to determine the culpability\nof Pyrodyne because Pyrodyne was participating in an abnormally dangerous activity\xe2\x80\xa6. The\nmodern doctrine of strict liability for abnormally dangerous activities derives from Fletcher v.\nRylands, 159 Eng. Rep. 737 (1865), in which the defendant\xe2\x80\x99s reservoir flooded mine shafts on the\nplaintiff\xe2\x80\x99s adjoining land. Rylands v. Fletcher has come to stand for the rule that the defendant will\nbe liable when he damages another by a thing or activity unduly dangerous and inappropriate to the\nplace where it is maintained, in the light of the character of that place and its surroundings.\nThe basic principle of Rylands v. Fletcher has been accepted by the Restatement (Second) of\nTorts. Section 519 of the Restatement provides that any party carrying on an \xe2\x80\x9cabnormally dangerous\nactivity\xe2\x80\x9d is strictly liable for ensuing damages. The test for what constitutes such an activity is stated\nin section 520 of the Restatement. Both Restatement sections have been adopted by this court, and\ndetermination of whether an activity is an \xe2\x80\x9cabnormally dangerous activity\xe2\x80\x9d is a question of law.\n\n\x0cCASES & CRITIQUE\n\n225\n\nSection 520 of the Restatement lists six factors that are to be considered in determining whether an\nactivity is \xe2\x80\x9cabnormally dangerous.\xe2\x80\x9d The factors are as follows:\n(a) existence of a high degree of risk of some harm to the person, land or chattels\nof others;\n(b) likelihood that the harm that results from it will be great;\n(c) inability to eliminate the risk by the exercise of reasonable care;\n(d) extent to which the activity is not a matter of common usage;\n(e) inappropriateness of the activity to the place where it is carried on; and\n(f) extent to which its value to the community is outweighed by its dangerous\nattributes.\n\xe2\x80\xa6[T]he comments to section 520 explain how these factors should be evaluated:\nAny one of them is not necessarily sufficient of itself in a particular case, and\nordinarily several of them will be required for strict liability. On the other hand, it\nis not necessary that each of them be present, especially if others weigh heavily.\nBecause of the interplay of these various factors, it is not possible to reduce\nabnormally dangerous activities to any definition. The essential question is\nwhether the risk created is so unusual, either because of its magnitude or because\nof the circumstances surrounding it, as to justify the imposition of strict liability\nfor the harm that results from it, even though it is carried on with all reasonable\ncare.\nExamination of these factors persuades us that fireworks displays are abnormally dangerous\nactivities justifying the imposition of strict liability.\nWe find that the factors stated in clauses (a), (b), and (c) are all present in the case of fireworks\ndisplays. Anytime a person ignites aerial shells or rockets with the intention of sending them aloft\nto explode in the presence of large crowds of people, a high risk of serious personal injury or property\ndamage is created. That risk arises because of the possibility that a shell or rocket will malfunction\nor be misdirected. Furthermore, no matter how much care pyrotechnicians exercise, they cannot\nentirely eliminate the high risk inherent in setting off powerful explosives such as fireworks near\ncrowds.\nThe dangerousness of fireworks displays is evidenced by the elaborate scheme of administrative\nregulations with which pyrotechnicians must comply. Pyrotechnicians must be licensed to conduct\npublic displays of special fireworks. To obtain such a license, the pyrotechnician must take and pass\na written examination administered by the director of fire protection, and must submit evidence of\nqualifications and experience, including participation in the firing of at least six public displays as\nan assistant, at least one of which shall have been in the current or preceding year. The\npyrotechnician\xe2\x80\x99s application for a license must be investigated by the director of fire protection, who\nmust confirm that the applicant is competent and experienced. Licensed pyrotechnicians are\ncharged with ensuring that the display is set up in accordance with all rules and regulations.\nRegulations also govern such matters as the way in which the fireworks at public displays are\nconstructed, stored, installed, and fired. The necessity for such regulations demonstrates the\ndangerousness of fireworks displays.\nPyrodyne argues that if the regulations are complied with, then the high degree of risk otherwise\ninherent in the displays can be eliminated. Although we recognize that the high risk can be reduced,\nwe do not agree that it can be eliminated. Setting off powerful fireworks near large crowds remains\na highly risky activity even when the safety precautions mandated by statutes and regulations are\nfollowed. The Legislature appears to agree, for it has declared that in order to obtain a license to\nconduct a public fireworks display, a pyrotechnician must first obtain a surety bond or a certificate\nof insurance, the amount of which must be at least $1 million for each event.\nThe factors stated in clauses (a), (b), and (c) together, and sometimes one of them alone, express\nwhat is commonly meant by saying an activity is ultrahazardous. As the Restatement explains,\nhowever, \xe2\x80\x9cliability for abnormally dangerous activities is not a matter of these three factors alone,\nand those stated in Clauses (d), (e), and (f) must still be taken into account.\xe2\x80\x9d\n\n\x0c226\n\nTORT LAW\n\nThe factor expressed in clause (d) concerns the extent to which the activity is not a matter \xe2\x80\x9cof\ncommon usage.\xe2\x80\x9d The Restatement explains that \xe2\x80\x9can activity is a matter of common usage if it is\ncustomarily carried on by the great mass of mankind or by many people in the community.\xe2\x80\x9d As\nexamples of activities that are not matters of common usage, the Restatement comments offer\ndriving a tank, blasting, the manufacture, storage, transportation, and use of high explosives, and\ndrilling for oil. The deciding characteristic is that few persons engage in these activities. Likewise,\nrelatively few persons conduct public fireworks displays. Therefore, presenting public fireworks\ndisplays is not a matter of common usage.\nPyrodyne argues that the factor stated in clause (d) is not met because fireworks are a common\nway to celebrate the Fourth of July. We reject this argument. Although fireworks are frequently and\nregularly enjoyed by the public, few persons set off special fireworks displays. Indeed, the general\npublic is prohibited by statute from making public fireworks displays insofar as anyone wishing to\ndo so must first obtain a license.\nThe factor stated in clause (e) requires analysis of the appropriateness of the activity to the place\nwhere it was carried on. In this case, the fireworks display was conducted at the Puyallup\nFairgrounds. Although some locations\xe2\x80\x94such as over water\xe2\x80\x94may be safer, the Puyallup\nFairgrounds is an appropriate place for a fireworks show because the audience can be seated at a\nreasonable distance from the display. Therefore, the clause (e) factor is not present in this case.\nThe factor stated in clause (f) requires analysis of the extent to which the value of fireworks to\nthe community outweighs its dangerous attributes. We do not find that this factor is present here.\nThis country has a long-standing tradition of fireworks on the Fourth of July. That tradition suggests\nthat we as a society have decided that the value of fireworks on the day celebrating our national\nindependence and unity outweighs the risks of injuries and damage.\nIn sum, we find that setting off public fireworks displays satisfies four of the six conditions under\nthe Restatement test; that is, it is an activity that is not \xe2\x80\x9cof common usage\xe2\x80\x9d and that presents an\nineliminably high risk of serious bodily injury or property damage. We therefore hold that\nconducting public fireworks displays is an abnormally dangerous activity justifying the imposition\nof strict liability.\nThis conclusion is consistent with the results reached in cases involving damages caused by\ndetonating dynamite. This court has recognized that parties detonating dynamite are strictly liable\nfor the damages caused by such blasting. See Foster v. Preston Mill Co., 268 P.2d 645 (Wash.\n1954). There are a number of similarities between fireworks and dynamite. Both activities involve\nlicensed experts intentionally igniting for profit explosives that have great potential for causing\ndamage. Moreover, after the explosion no evidence remains as to the original explosive. The notable\ndifference between fireworks and dynamite is that with fireworks the public is invited to watch the\ndisplay and with dynamite the public is generally prohibited from being near the blasting location.\nBecause detonating dynamite is subject to strict liability, and because of the similarities between\nfireworks and dynamite, strict liability is also an appropriate standard for determining the standard\nof liability for pyrotechnicians for any damages caused by their fireworks displays.\nII. Public Policy and Strict Liability For Fireworks Displays\nPolicy considerations also support imposing strict liability on pyrotechnicians for damages\ncaused by their public fireworks displays, although such considerations are not alone sufficient to\njustify that conclusion. Most basic is the question as to who should bear the loss when an innocent\nperson suffers injury through the nonculpable but abnormally dangerous activities of another. In\nthe case of public fireworks displays, fairness weighs in favor of requiring the pyrotechnicians who\npresent the displays to bear the loss rather than the unfortunate spectators who suffer the injuries.\nIn addition, the rule of strict liability rests not only upon the ultimate idea of rectifying a wrong and\nputting the burden where it should belong as a matter of abstract justice, that is, upon the one of the\ntwo innocent parties whose acts instigated or made the harm possible, but it also rests on problems\nof proof: One of these common features is that the person harmed would encounter a difficult\nproblem of proof if some other standard of liability were applied. For example, the disasters caused\nby those who engage in abnormally dangerous or extra-hazardous activities frequently destroy all\n\n\x0cCASES & CRITIQUE\n\n227\n\nevidence of what in fact occurred, other than that the activity was being carried on. Certainly this is\ntrue with explosions of dynamite, large quantities of gasoline, or other explosives.\nIn the present case, all evidence was destroyed as to what caused the misfire of the shell that\ninjured the Kleins. Therefore, the problem of proof this case presents for the plaintiffs also supports\nimposing strict liability on Pyrodyne.\nIII. Statutory Strict Liability for Fireworks\nAs well as holding Pyrodyne strictly liable on the basis that fireworks displays are abnormally\ndangerous activities, we also hold that RCW 70.77.285 imposes statutory strict liability. The statute,\nwhich mandates insurance coverage to pay for all damages resulting from fireworks displays,\nestablishes strict liability for any ensuing injuries.\nAn example of a statute which the appellate court has held to be a strict liability statute is RCW\n16.08.040, which reads in part:\nThe owner of any dog which shall bite any person shall be liable for such damages\nas may be suffered by the person bitten, regardless of the former viciousness of\nsuch dog or the owner\xe2\x80\x99s knowledge of such viciousness.\nThe court in Beeler v. Hickman, 750 P.2d 1282 (Wash. Ct. App. 1988), held that the language of\nthe statute clearly established strict liability for the owner of the dog. Although RCW 70.77.285 does\nnot establish strict liability in the same language as the dog bite statute, it nonetheless provides that\npyrotechnicians shall pay for all damages to persons or property resulting from fireworks displays.\nRCW 70.77.285 has been amended twice since it was enacted in 1961. Neither amendment\nchanged the original disjunctive language mandating liability insurance coverage for \xe2\x80\x9call damages\nto persons or property or any negligence on the part of the applicant.\xe2\x80\x9d The statutory language clearly\nindicates that the Legislature intended pyrotechnicians to carry insurance to cover any damages\nincurred as a result of the fireworks display. The rule of construction applied to the disjunctive \xe2\x80\x9cor\xe2\x80\x9d\nmandates that by use of \xe2\x80\x9cor,\xe2\x80\x9d a failure to comply with any requirement in the statute imposes\nliability. Thus, by utilizing the disjunctive \xe2\x80\x9cor\xe2\x80\x9d the Legislature indicated that damages will be owed\nfor all injuries caused by the fireworks display, regardless of whether they resulted from the\npyrotechnician\xe2\x80\x99s negligence.\nFurthermore, no part of a statute should be deemed inoperative or superfluous unless it is the\nresult of obvious mistake or error. This requires that every word, clause, and sentence of a statute be\ngiven effect, if possible. Pursuant to this requirement, both clauses of RCW 70.77.285 should be\ngiven effect. Therefore, it is necessary to interpret the statute as mandating coverage of all damages\ncaused by fireworks displays, regardless of whether those damages were caused by negligence of the\npyrotechnicians.\nIV. Possible Negligent Manufacture as an Intervening Force\nPyrodyne argues that even if there is strict liability for fireworks, its liability under the facts of\nthis case is cut off by the manufacturer\xe2\x80\x99s negligence, the existence of which we assume for purposes\nof evaluating the propriety of the trial court\xe2\x80\x99s summary judgment. According to Pyrodyne, a shell\ndetonated without leaving the mortar box because it was negligently manufactured. This detonation,\nPyrodyne asserts, was what caused the misfire of the second shell, which in turn resulted in the\nKleins\xe2\x80\x99 injuries. Pyrodyne reasons that the manufacturer\xe2\x80\x99s negligence acted as an intervening or\noutside force that cuts off Pyrodyne\xe2\x80\x99s liability\xe2\x80\xa6.\nWe note that the Restatement (Second) of Torts takes a position contrary to that advocated by\nPyrodyne. Section 522 of the Restatement provides that: \xe2\x80\x9cOne carrying on an abnormally dangerous\nactivity is subject to strict liability for the resulting harm although it is caused by the unexpectable\n(a) innocent, negligent or reckless conduct of a third person.\xe2\x80\x9d The comment to section 522 explains\nthat \xe2\x80\x9cif the risk from an abnormally dangerous activity ripens into injury, it is immaterial that the\nharm occurs through the unexpectable action of a human being.\xe2\x80\x9d\nThus, on the one hand, Pyrodyne urges us to adopt the view that any intervention by an outside\nforce beyond the defendant\xe2\x80\x99s control is sufficient to relieve the defendant from strict liability for an\nabnormally dangerous activity. On the other hand, section 522 provides that no negligent\n\n\x0c228\n\nTORT LAW\n\nintervention by a third person will relieve the defendant from strict liability for abnormally\ndangerous activities. We reject both positions\xe2\x80\xa6.\nWe hold that intervening acts of third persons serve to relieve the defendant from strict liability\nfor abnormally dangerous activities only if those acts were unforeseeable in relation to the\nextraordinary risk created by the activity. The rationale for this rule is that it encourages those who\nconduct abnormally dangerous activities to anticipate and take precautions against the possible\nnegligence of third persons. Where the third person\xe2\x80\x99s negligence is beyond the actor\xe2\x80\x99s control, this\nrule\xe2\x80\xa6nonetheless imposes strict liability if the third person negligence was reasonably foreseeable.\nSuch a result allocates the economic burden of injuries arising from the foreseeable negligence of\nthird persons to the party best able to plan for it and to bear it\xe2\x80\x94the actor carrying on the abnormally\ndangerous activity.\nIn the present case, negligence on the part of the fireworks manufacturer is readily foreseeable\nin relation to the extraordinary risk created by conducting a public fireworks display. Therefore,\neven if such negligence may properly be regarded as an intervening cause, an issue we need not\ndecide, it cannot function to relieve Pyrodyne from liability. This is not to say, however, that in a\nproper case a defendant in a strict liability action could not pursue a claim against a third party and\nenforce a right of contribution to an extent proportionate to that party\xe2\x80\x99s fault.\nWe hold that Pyrodyne Corporation is strictly liable for all damages suffered as a result of the\nJuly 1987 fireworks display. Detonating fireworks displays constitutes an abnormally dangerous\nactivity warranting strict liability. Public policy also supports this conclusion. Furthermore, RCW\n70.77.285 mandates the payment of all damages caused by fireworks displays, regardless of whether\nthose damages were due to the pyrotechnicians\xe2\x80\x99 negligence. This establishes the standard of strict\nliability for pyrotechnicians. Therefore, we affirm the decision of the trial court.\nDolliver, Justice, concurring:\nI concur fully with the result reached by the majority. In my opinion the statute, RCW 70.77.285,\nis decisive. While I harbor some belief the Legislature may not have intended the result reached by\nthe majority, legislative intent is irrelevant when the language of the statute is plain on its face.\nI am not in agreement, however, with the analysis reached by the majority relative to the\napplication of Restatement (Second) of Torts \xc2\xa7 520, which characterizes fireworks displays as\n\xe2\x80\x9cabnormally dangerous.\xe2\x80\x9d\xe2\x80\xa6\nI first note that no other jurisdiction has adopted a common law rule of strict liability for\nfireworks displays. While this state regularly does things differently from its companion\njurisdictions and, indeed, its uniqueness is many times a source of justifiable pride, extreme care\nshould be exercised before embarking on a new doctrine foreign to this state as well as to all others\xe2\x80\xa6.\nThe majority claims [Restatement \xc2\xa7 520] factors (a), (b), (c), and (d) are present while factors (e)\nand (f) are not present. I agree factors (e) and (f) do not apply for the reasons given by the majority.\nI also agree factors (a) and (b) are present. Where I disagree with the majority is in whether factors\n(c) and (d) are present. The majority says yes, I say no.\nFireworks, no less than motor vehicles, for example, are high risk instrumentalities. In reality, all\ninstrumentalities inevitably involve some degree of risk. Nothing in human life is risk free. The real\nissue is whether the hazard can be reduced to acceptable limits. This analysis is particularly apt\nwhere, as here, the likelihood of injury to significant numbers of persons is great unless the risk is\nsignificantly reduced. Blasting at some remove from civilization is one thing; public, urban fireworks\ndisplays are another matter.\nIt is apparent the Legislature, recognizing the dangers of public fireworks displays, attempted to\nregulate comprehensively fireworks displays. There are strict and specific safety and licensing\nprovisions\xe2\x80\xa6. The Legislature has made the determination, through the legislative process, that in\nfact the \xe2\x80\x9chigh degree of risk\xe2\x80\x9d inherent in public fireworks displays can adequately be reduced by the\n\xe2\x80\x9creasonable care\xe2\x80\x9d required by the statute. This being so, I do not believe this court should use a\nrandom case, as here, to tamper with this legislative judgment. Factor (c) has not been met.\nIn discussing factor (d), the majority states that since \xe2\x80\x9cfew persons set off special fireworks\ndisplays\xe2\x80\x9d they are not a matter of common usage. I believe the majority misconstrues factor (d). The\nRestatement comment on clause (d) discusses activities carried on by only a few\n\n\x0cCASES & CRITIQUE\n\n229\n\npersons, e.g., blasting, the transportation of high explosives, the drilling of oil wells. What is\nsignificant is that each of the activities used for illustrative purposes is not only an activity which is\nnot a matter of common usage, but it is also a solitary activity. In contrast to the large crowds which\nattend public fireworks displays, the examples listed in comment d are not for spectators and are\ndone away from the public. The viewing of a public fireworks display is in fact, in the words of the\ncomment on clause (d), \xe2\x80\x9ccustomarily carried on by the great mass of mankind or by many people in\nthe community.\xe2\x80\x9d None of the examples in the comment are in any way similar to public fireworks\ndisplays. While it is true the setting up and setting off of the fireworks in public displays are done by\nvery few people, the more important \xe2\x80\x9cactivity\xe2\x80\x9d is viewing the fireworks display. I would find factor\n(d) is not met.\nI also disagree with the majority\xe2\x80\x99s treatment of the six factors as acting only in favor of strict\nliability. Properly construed, each of the factors may also mitigate against strict liability\xe2\x80\xa6. The\nmajority concedes \xe2\x80\x9cthe value of fireworks to the community outweighs its dangerous attributes.\xe2\x80\x9d\nProperly construed, therefore, factor (f) is not merely a nullity in the strict liability analysis, but\nshould actually mitigate against the imposition of strict liability\xe2\x80\xa6.\n1.\n\nQUESTIONS\nStrict in Theory, Fatal in Fact? How do plaintiffs benefit by establishing strict liability?\nHow does it effectively eliminate an element of negligence? Do you think that Klein\ncould also have established negligence here? What effect might strict liability have on\nout-of-court settlements? And will imposing strict liability likely encourage fireworks\ncompanies to be more careful in the future?\n\n2.\n\nCondemnation or Cost Allocation? The justices look to \xc2\xa7 520 of the Restatement\n(Second) of Torts to determine whether fireworks displays are abnormally dangerous\nactivities. On what points do they agree and disagree? In particular, how does factor (f)\nhave different implications for Justice Guy and Justice Dolliver? Do they have divergent\nviews on whether strict liability signals disapproval of ultrahazardous activities?\n\n3.\n\nKeep It Simple, Stupid: Under the Restatement (Third) of Torts, an activity is\nabnormally dangerous if it (1) creates a foreseeable and highly significant risk of physical\nharm even when reasonable care is exercised by all actors; and (2) isn\xe2\x80\x99t a matter of\ncommon usage. Does this create a meaningful difference from the earlier standard?\nFOSTER v. PRESTON MILL CO.\nSupreme Court of Washington (1954)\n\nHamley, Justice:\n\n\xc3\xa3\n\nBlasting operations conducted by Preston Mill\nCompany frightened [a] mother mink owned by B.W.\nFoster, and caused the mink to kill their kittens.\nFoster brought this action against the company to\nrecover damages\xe2\x80\xa6[and] judgment was rendered for\nplaintiff in the sum of $1,953.68. The theory adopted\nby the [trial] court was that, after defendant received\nnotice of the effect which its blasting operations were\nhaving upon the mink, it was absolutely liable for all\ndamages of that nature thereafter sustained\xe2\x80\xa6.\nRespondent\xe2\x80\x99s mink ranch is located in a rural area [on about]\xe2\x80\xa6seven and one-half acres on\nwhich are located seven sheds for growing mink\xe2\x80\xa6. The period of each year during which mink\nkittens are born, known as the whelping season, begins about May 1st. The kittens are born during\na period of about two and one-half weeks, and are left with their mothers until they are six weeks\nold. During this period, the mothers are very excitable. If disturbed by noises, smoke, or dogs and\n\xc3\xa3\n\nNetwork for Animal Freedom, Mink I Bur (CC BY-NC-SA 2.0).\n\n\x0c230\n\nTORT LAW\n\ncats, they run back and forth in their cages and frequently destroy their young. However, mink\nbecome accustomed to disturbances of this kind, if continued over a period of time\xe2\x80\xa6.\nAppellant and several other companies have been engaged in logging in the adjacent area for\nmore than fifty years. Early in May, 1951, appellant began the construction of a road to gain access\nto certain timber which it desired to cut. The road was located about two and one-quarter miles\nsouthwest of the mink ranch, and about twenty-five hundred feet above the ranch, along the side of\nwhat is known as Rattlesnake Ledge. It was necessary to use explosives to build the road. The\ncustomary types of explosives were used, and the customary methods of blasting were followed\xe2\x80\xa6.\nThe procedure used was to set off blasts twice a day\xe2\x80\x94at noon and at the end of the work day.\nRoy A. Peterson, the manager of the ranch in 1951, testified that the blasting resulted in \xe2\x80\x9ca\ntremendous vibration, is all. Boxes would rattle on the cages.\xe2\x80\x9d The mother mink would then run\nback and forth in their cages, and many of them would kill their kittens\xe2\x80\xa6.\nBefore the 1951 whelping season had far progressed, the mink mothers, according to Peterson\xe2\x80\x99s\nestimate, had killed thirty-five or forty of their kittens. He then told the manager of appellant\ncompany what had happened. He did not request that the blasting be stopped. After some\ndiscussion, however, appellant\xe2\x80\x99s manager indicated that the shots would be made as light as possible.\nThe amount of explosives used in a normal shot was then reduced [to lessen the vibration.]\nOfficials of appellant company testified that it would have been impractical to entirely cease\nroad-building during the several weeks required for the mink to whelp and wean their young. Such\na delay would have made it necessary to run the logging operation another season, with attendant\nexpense. It would also have disrupted the company\xe2\x80\x99s log production schedule and consequently the\noperation of its lumber mill.\nIn this action, respondent sought and recovered judgment only for such damages as were\nclaimed to have been sustained as a result of blasting operations conducted after appellant received\nnotice that its activity was causing loss of mink kittens.\nThe primary question [on appeal] is whether, on these facts, the judgment against appellant is\nsustainable on the theory of absolute liability.\nThe modern doctrine of strict liability for dangerous substances and activities stems from Justice\nBlackburn\xe2\x80\x99s decision in Rylands v. Fletcher\xe2\x80\xa6. As applied to blasting operations, the doctrine has\nquite uniformly been held to establish liability, irrespective of negligence, for property damage\nsustained as a result of casting rocks or other debris on adjoining or neighboring premises.\nThere is a division of judicial opinion as to whether the doctrine of absolute liability should apply\nwhere the damage from blasting is caused, not by the casting of rocks and debris, but by concussion,\nvibration, or jarring. This court has adopted the view that the doctrine applies in such cases. Patrick\nv. Smith, 134 Pac. 1076 (Wash. 1913). In the Patrick case, it was held that contractors who set off an\nexceedingly large blast of powder, causing the earth for a considerable distance to shake violently,\nwere liable to an adjoining owner whose well was damaged and water supply lost, without regard to\ntheir negligence in setting off the blast, although there was no physical invasion of the property\xe2\x80\xa6.\nHowever the authorities may be divided on the point just discussed, they appear to be agreed\nthat strict liability should be confined to consequences which lie within the extraordinary risk whose\nexistence calls for such responsibility. This limitation on the doctrine is indicated in the italicized\nportion of the rule as set forth in Restatement of Torts:\nExcept as stated in \xc2\xa7\xc2\xa7 521-4, one who carries on an ultrahazardous activity is liable\nto another whose person, land or chattels the actor should recognize as likely to\nbe harmed by the unpreventable miscarriage of the activity for harm resulting\nthereto from that which makes the activity ultrahazardous, although the utmost\ncare is exercised to prevent the harm.\nThis restriction which has been placed upon the application of the doctrine of absolute liability\nis based upon considerations of policy. As Professor Prosser has said:\nIt is one thing to say that a dangerous enterprise must pay its way within\nreasonable limits, and quite another to say that it must bear responsibility for\nevery extreme of harm that it may cause. The same practical necessity for the\n\n\x0cCASES & CRITIQUE\n\n231\n\nrestriction of liability within some reasonable bounds, which arises in connection\nwith problems of \xe2\x80\x9cproximate cause\xe2\x80\x9d in negligence cases, demands here that some\nlimit be set. This limitation has been expressed by saying that the defendant\xe2\x80\x99s duty\nto insure safety extends only to certain consequences. More commonly, it is said\nthat the defendant\xe2\x80\x99s conduct is not the \xe2\x80\x9cproximate cause\xe2\x80\x9d of the damage. But\nordinarily in such cases no question of causation is involved, and the limitation is\none of the policy underlying liability.\nApplying this principle to the case before us, the question comes down to this: Is the risk that\nany unusual vibration or noise may cause wild animals, which are being raised for commercial\npurposes, to kill their young, one of the things which make the activity of blasting ultrahazardous?\nWe have found nothing in the decisional law which would support an affirmative answer to this\nquestion. The decided cases, as well as common experience, indicate that the thing which makes\nblasting ultrahazardous is the risk that property or persons may be damaged or injured by coming\ninto direct contact with flying debris, or by being directly affected by vibrations of the earth or\nconcussions of the air.\nWhere, as a result of blasting operations, a horse has become frightened and has trampled or\notherwise injured a person, recovery of damages has been upheld on the theory of negligence. Klein\nv. Phelps Lbr. Co., 135 Pac. 226 (1913). But we have found no case where recovery of damages caused\nby a frightened farm animal has been sustained on the ground of absolute liability\xe2\x80\xa6.\nThe relatively moderate vibration and noise which appellant\xe2\x80\x99s blasting produced at a distance of\ntwo and a quarter miles was no more than a usual incident of the ordinary life of the community.\nThe trial court specifically found that the blasting did not unreasonably interfere with the enjoyment\nof their property by nearby landowners, except in the case of respondent\xe2\x80\x99s mink ranch. It is the\nexceedingly nervous disposition of mink, rather than the normal risks inherent in blasting\noperations, which therefore must, as a matter of sound policy, bear the responsibility for the loss\nhere sustained\xe2\x80\xa6.\nIt is our conclusion that the risk of causing harm of the kind here experienced, as a result of the\nrelatively minor vibration, concussion, and noise from distant blasting, is not the kind of risk which\nmakes the activity of blasting ultrahazardous. The doctrine of absolute liability is therefore\ninapplicable under the facts of this case, and respondent is not entitled to recover damages. The\njudgment is reversed.\n1.\n2.\n\nQUESTIONS\nJolley Revisited: How is Foster like Jolley? Does it also have parallels with Victor?\nHindsight: Would Foster have prevailed if the theory behind the claim had been\nnegligence, not strict liability?\nPYROMANIA PROBLEM\n\nJohn sells perfume for Christine De Orr. One day, on his way to make a delivery, he stops to buy\nsome tools at Ole\xe2\x80\x99s Home Center. Leonard sneaks up to John\xe2\x80\x99s truck in the parking lot, pops a\ngasoline-soaked rag in the exhaust pipe, and sets the rag alight. After the truck explodes, fire burns\nthe hardware store to the ground. The store\xe2\x80\x99s owner, Ole, wants to sue John on a theory of strict\nliability. What\xe2\x80\x99s John\xe2\x80\x99s best rebuttal?\n(a)\n(b)\n(c)\n(d)\n\nJohn\xe2\x80\x99s decision to leave his truck unattended wasn\xe2\x80\x99t negligent.\nTransporting the perfume wasn\xe2\x80\x99t an actual cause of the fire that destroyed the store.\nLeonard\xe2\x80\x99s acts mean that Ole can\xe2\x80\x99t establish proximate cause.\nDelivering perfume isn\xe2\x80\x99t an abnormally dangerous activity.\n\n\x0c232\n\nTORT LAW\n\nCHAPTER\n\n6:\n\nDAMAGES\n\nA. Compensatory Damages\nKENTON v. HYATT HOTELS CORP.\nSupreme Court of Missouri (1985)\nDowd, Judge:\n\n\xc3\xa3\n\n[Two skywalks above the Hyatt Regency Hotel\nlobby in Kansas City, Missouri, collapsed onto the\ncrowded lobby floor. Many injured victims sued Hyatt\nand agreed to a partial settlement, leaving only the issue\nof damages for the jury. In exchange, the victims agreed\nnot to present evidence regarding the construction and\nmaintenance of the skywalks. They also agreed to a cap\non the total punitive damages. Plaintiff-respondent Kay\nKenton was one victim. She had completed two years of\nlaw school at the time of the accident. The jury awarded\nher $4,000,000 in compensatory damages. Defendants\nsought a new trial, arguing that the award was excessive.\nThe trial judge sustained a motion for a new trial unless\nthe plaintiff agreed to a $250,000 remittitur\xe2\x80\x94a procedural tool by which the judge offers the plaintiff\nthe option of accepting a lower award instead of re-trying an entire case. Plaintiff accepted the\nremittitur, and both sides appealed.]\xe2\x80\xa6\nWe affirm the judgment of the trial court, in all respects, except remittitur; we\xe2\x80\xa6reinstate the\nverdict and enter judgment for plaintiff for the verdict sum of $4,000,000\xe2\x80\xa6.\nI\nAppellants\xe2\x80\x99 first point is that the trial court erred in admitting evidence concerning events at the\nhotel on July 17, 1981. They contend: \xe2\x80\x9cSuch evidence was not relevant to any issue relating to\nrespondent\xe2\x80\x99s damages, because appellants admitted that respondent\xe2\x80\x99s injuries were caused by the\naccident. Because the evidence was inflammatory and prejudicial to appellants the jury\xe2\x80\x99s verdict was\nbased upon improper passion and prejudice and was greatly enhanced.\xe2\x80\x9d\xe2\x80\xa6\n[A fire captain who responded to the collapse and a TV reporter who witnessed the disaster were\npermitted to testify about the chaos and devastation of that day. The trial court also let some\nvideotape evidence from the scene into evidence, with certain gruesome parts edited out.]\nRespondent\xe2\x80\x99s sister, Ann Kenton, who was with her on the evening of the disaster, testified as to\nher observations of that occurrence\xe2\x80\xa6. Ann described the sounds she heard coming from people in\nand around the skywalks after the collapse: \xe2\x80\x9c\xe2\x80\xa6It was hysterical, hysteria. There were grown men\ncrying for help and there was nothing I could do for them. There were people crushed everywhere,\nblood, and I looked in the area where she had been and there was rubble and bodies and I couldn\xe2\x80\x99t\npick her out of the bodies. And the moans and screams.\xe2\x80\x9d Ann later found respondent slumped in a\nchair to the west of the skywalks, and respondent was carried outside and placed on a gurney or a\nstretcher.\nStill photographs of the scene were admitted into evidence, some in color and some in black and\nwhite. Ann Kenton identified Exhibit 4K as the area where respondent had been and described it\nthus: \xe2\x80\x9c\xe2\x80\xa6There were people sticking halfway out from under the skywalk, from here up there were\ngrown men screaming for help, moaning and I walked through the blood, or there was blood\neverywhere. And the rescue people were pulling out whoever was more alive than others, I suppose.\xe2\x80\x9d\nNone of the admitted photographs show any dead or injured persons\xe2\x80\xa6.\nAppellants argue that the testimony concerning the events of July 17, 1981, was neither probative\nnor material to the issue of respondent\xe2\x80\x99s compensation; it was an attempt to incite the jury with\nevidence of how she was injured; and that the \xe2\x80\x9cslight probative value the testimony may have had\n\xc3\xa3\n\nHyatt Regency Disaster in Photos & Headlines, Kansas City Public Library (2011).\n\n\x0cCASES & CRITIQUE\n\n233\n\nconcerning the nature of Ms. Kenton\xe2\x80\x99s injuries was outweighed completely by the gruesome and\nhighly inflammatory nature of the evidence.\xe2\x80\x9d\xe2\x80\xa6\nRespondent says that\xe2\x80\xa6the evidence was not offered or received as bearing on appellants\xe2\x80\x99\nconduct which was not an issue, but was offered instead for the purpose of showing how respondent\nwas injured, both physically and mentally, as well as her location at the time her injuries were\nsustained. Begley v. Adaber Realty & Investment Company, 358 S.W.2d 785 (Mo. 1962), held that\nphotographs of ductwork which fell upon plaintiff, taken after it had fallen and had been removed\nto a parking lot, was admissible to show the type of construction, the presence or absence of straps,\nand what type of object struck plaintiff. Respondent was similarly entitled to show the force, violence\nand traumatic circumstances of this tragic occurrence as bearing upon the nature, extent and\nduration of her injuries\xe2\x80\xa6. Even though photographs are gruesome and depict serious injuries they\nneed not be excluded if they satisfy the rules as to the admission of demonstrative evidence.\nThe evidence of respondent\xe2\x80\x99s injuries is that she suffered a cervical fracture which produced an\ninitial paralysis of her body. In addition, Dr. Walter Menninger stated that she was subjected to the\nmost severe psychosocial stressor imaginable, Grade 7, and the traumatic event and the crippling\neffects it produced caused a dramatic and profound psychic trauma which is continuing in nature.\nDr. Francisco Gomez, respondent\xe2\x80\x99s treating psychiatrist, and Dr. Menninger classified her psychiatric\ninjury as post-traumatic stress disorder, chronic and severe. Dr. Menninger testified further that she\nexhibited symptoms characteristic of a post-traumatic stress disorder: re-experiencing the trauma by\neither recurrent recollections, recurrent dreams, or suddenly acting or feeling as if the event was\nhappening; and a numbing of responsiveness or reduced involvement with the external world\nsometime afterward. Certainly, the jury was entitled to consider the evidence of the scene of the\ncollapse, the utter chaos that prevailed, and the effect upon respondent of being pinned beneath the\ndebris, amidst blood, dead and injured bodies, and the sheer terror of the voices around her, in\nevaluating her physical and mental injuries for the purpose of fixing her compensation. The evidence\nwas relevant, material, and appropriate. Its probative value far outweighed any prejudicial effect it\nmight have had on the jury. There was no error in admitting the evidence\xe2\x80\xa6.\nII\n[Appellants\xe2\x80\x99 second argument is that the trial court erred in refusing to exclude the testimony of\ntwo law school professors that respondent was unable to return to law school or to practice law.]\xe2\x80\xa6\nAppellants conclude that because of these (claimed) errors the jury considered evidence\nincompetent in itself and as foundation for economic projections of respondent\xe2\x80\x99s future wage loss,\nand the award was greatly and improperly enhanced by the use of this evidence.\n[The professors testified to the rigors of law school, stating that law students spend 48 hours per\nweek to prepare for classes and that with Kenton\xe2\x80\x99s medical condition, she could not function as a\nlaw student. Another professor testified that respondent perhaps could return as a part-time student\nbut would be unlikely to find part-time employment after graduation. A lawyer who suffered\ndisabilities from polio testified for Hyatt, stating that, with accommodations, Kenton could finish\nlaw school and practice law, but he did concede that her job opportunities would be narrowed by\nher disabilities.]\nThe trial court properly determined that expert testimony was needed to inform the jury as to\nthe physical and mental rigors of a person attending law school and practicing law. Members of the\njury would not ordinarily have knowledge of that subject, and certainly the two professors, being\nactively engaged in that field would have superior knowledge and expertise thereof by reason of their\neducation and experience\xe2\x80\xa6. In addition to stating their knowledge and experience in the practice\nof law, and in teaching law school courses, both professors reviewed respondent\xe2\x80\x99s academic records,\nmedical records, and reports which were in evidence without objection. [One of the professors who\ntestified] had also personally met and interviewed respondent. There was thus a sufficient factual\nbasis for them to give their opinions. They were not\xe2\x80\xa6giving medical opinions\xe2\x80\xa6.\nAppellants also say that the testimony of the two professors permitted respondent\xe2\x80\x99s economist,\nDr. Ward, to base his opinion as to her projection of economic losses on incompetent evidence\xe2\x80\xa6.\n[We disagree.] The jury [properly] had the function of evaluating all the evidence of economic loss,\nboth appellants\xe2\x80\x99 and respondent\xe2\x80\x99s, and the weight to be given thereto\xe2\x80\xa6.\n\n\x0c234\n\nTORT LAW\n\nIII\n[Appellants\xe2\x80\x99 third argument is] that the trial court erred in refusing to grant a remittitur of\n$2,000,000. They contend that as a matter of law the jury\xe2\x80\x99s verdict greatly exceeded the upper limits\nof \xe2\x80\x9cfair and reasonable compensation,\xe2\x80\x9d the proper measure of damages, and that the verdict was, as\nthe trial court itself recognized, the erroneous product of a mistaken evaluation of highly incendiary\nevidence and was improperly disproportionate to awards for comparable or more severe injuries.\nTaking respondent\xe2\x80\x99s evidence in the light most favorable to her, as this court must do, her loss\nof income and the reasonably anticipated future loss of income because of the injuries sustained was\ntestified to\xe2\x80\xa6have been between $1,605,846 as a low, to a high of $2,164,642.\nThe evidence shows that, to the time of trial, respondent\xe2\x80\x99s hospital, medical and therapy expenses\nincurred amounted to at least $80,000; her future physical therapy and cost of an electronic device\n(T.E.N.S.) was from $189,759 to $250,000; her homemaking assistance and care, $307,228 to\n$614,457; her future medical and supplemental insurance, $100,679. This evidence places the low of\nthese items at $677,666, and the high at $1,045,136. The economic loss, present and future medical,\nand therapy expenses thus shows a range of between $2,283,512 to $3,209,778.\nRespondent\xe2\x80\x99s age was 28 years at the time of trial. She has a life expectancy of 51.8 years. The\nnature and extent of respondent\xe2\x80\x99s injuries, is shown by the following evidence, all shown to have been\npermanent. She suffered a broken neck with permanent spinal cord damage [with miraculous surgical\ntreatment, she avoided becoming a permanent quadriplegic]; she has spasticity and weakness in all\nfour limbs, inability to walk without crutches, and must wear a knee cage to prevent buckling of the\nleft knee; lack of endurance and easy fatigability; reduced vital capacity and impaired breathing\nmuscles; sensory loss of much of her body below her neck, including female parts. She will not enjoy\na normal sexual life or have children normally; she has impaired bladder and bowel function with\nperiods of incontinence. Her bladder condition causes her to retain urine which will eventually\nproduce renal or kidney damage; psychic and emotional trauma diagnosed as chronic and severe\npost-traumatic stress syndrome, which will require continued psychiatric care; destruction of her\nathletic lifestyle which will prevent her from ever again playing tennis, skiing, running, jogging,\nplaying softball, raquetball, hiking, backpacking and riding horses; and a commitment to 2 to 4 hours\na day to maintain her present limited muscle function. There was some evidence that respondent\xe2\x80\x99s\ncost of therapy and the T.E.N.S. unit would increase over her lifetime, and her income would also\nincrease should she be employed as a lawyer, these being the effects of inflation.\nThe jury was entitled to consider the intangibles of the evidence of respondent\xe2\x80\x99s past and future\npain and suffering, the destruction of her previous lifestyle, along with the evidence of economic\nloss. All of the matters going to the nature and extent of respondent\xe2\x80\x99s injuries were primarily for the\njury\xe2\x80\x99s consideration because it is in a far better position to appraise them for the assessment of\ndamages which would fairly and reasonably compensate her. In Fowler v. Park Corporation, 673\nS.W.2d 749 (Mo. 1984), the plaintiff suffered the loss of both legs above the knees. He was 19 years\nold, with a life expectancy of 50 years. He had not successfully used prosthetic devices; he would\nneed constant care and medical attention, and had doubtful employability. He did not introduce\nevidence of economic damage other than showing that he stood to lose one million dollars in\nearnings based upon present wage levels, and the court said that he would obviously be incapable of\nleading a normal social life. The jury awarded $6 million to Fowler for his damages, and this court\ndeclined to interfere with the amount of the verdict.\nAppellants cite Chrisler v. Holiday Valley, Inc., 580 S.W.2d 309 (Mo. Ct. App. 1979), wherein the\nplaintiff, 17 years old, was rendered a quadriplegic by reason of a diving accident, and the jury\nreturned a verdict of $2.3 million, which was affirmed. That case does not aid appellants. There was\napparently no evidence of economic loss by the plaintiff, but importantly, the court said:\nIn most litigation, and particularly in personal injury actions, there is a large range\nbetween the damage extremes of inadequacy and excessiveness. Within that range\na jury has virtually unfettered discretion to determine the damages incurred and\nis under no obligation to, and is in fact prohibited from, specifying what amounts\nhave been attributed to each of the various elements of damage. Past and future\npain and suffering, embarrassment and humiliation, future care and medical\n\n\x0cCASES & CRITIQUE\n\n235\n\ntreatment, loss of or reduction in employment opportunities and many other\nfactors, do not lend themselves to precise calculation.\nThere is no exact formula to determine whether a verdict is excessive; each case is considered on\nits own facts. The ultimate test is what fairly and reasonably compensates plaintiff for the injuries\nsustained. In making this determination consideration is given to the nature and extent of the\ninjuries, diminished earning capacity, economic conditions, plaintiff\xe2\x80\x99s age, and a comparison of the\ncompensation awarded and permitted in cases of comparable injuries\xe2\x80\xa6.\nTurning to the merits of this case, we believe that the trial court abused its discretion in ordering\na remittitur of $250,000 after a verdict of $4,000,000 under the circumstances of this case. This\namount represents a miniscule percentage (6.25%) of the total verdict which demonstrates judicial\nhairsplitting and shows the extremes to which the remittitur practice has fallen. [Because of outcomes\nlike this,] remittitur shall no longer be employed in Missouri\xe2\x80\xa6. Accordingly, the verdict of the jury\nis affirmed and the cause is remanded with directions to set aside the order of remittitur and to\nreinstate the verdict and enter judgment for the plaintiff, Kay Kenton, in the sum of $4,000,000.00.\n\xc3\xa3\n\n1.\n\nQUESTIONS\nWhat\xe2\x80\x99s Tort Law Up To? Why do we award compensatory damages? How does this\nremedy serve the goals of tort law?\n\n2.\n\nShow Me the Money: What\xe2\x80\x99s the difference between the economic and non-economic\nlosses discussed in Kenton? Is it that only the former are readily quantifiable?\n\n3.\n\nCareer Planning: How granular should we be with our lost-income predictions? Should\nit matter, for example, if Kenton had a high GPA, if Kansas City firms have many female\npartners, or if she told her friends that she dreamed of becoming a public defender?\n\n\xc3\xa3\n\nWela Quan, Eggshell Skull Rule, NY Bar Picture Book (CC BY-NC-ND 4.0).\n\n\x0c236\n\nTORT LAW\n\nMcMILLAN v. CITY OF NEW YORK\nUnited States District Court for the Eastern District of New York (2008)\nWeinstein, Judge:\nJames McMillan, the claimant, was rendered a quadriplegic in the crash\nof a ferryboat operated negligently by the City of New York. He sued for\npain, suffering and cost of necessary medical care.\nA critical factor in determining claimant\xe2\x80\x99s damages is his estimated life\nexpectancy. In a trial before the court and an advisory jury, statistical\nevidence was introduced suggesting that a spinal cord-injured \xe2\x80\x9cAfricanAmerican\xe2\x80\x9d was likely to survive for fewer years than persons of other\n\xe2\x80\x9craces\xe2\x80\x9d with similar injuries. The parties characterized claimant as an\n\xe2\x80\x9cAfrican-American.\xe2\x80\x9d\nThe question posed is whether such \xe2\x80\x9cracially\xe2\x80\x9d based statistics and other compilations may be\nrelied upon to find a shorter life expectancy for a person characterized as an \xe2\x80\x9cAfrican-American,\xe2\x80\x9d\nthan for one in the general American population of mixed \xe2\x80\x9cethnic\xe2\x80\x9d and \xe2\x80\x9cracial\xe2\x80\x9d backgrounds. The\nanswer is \xe2\x80\x9cno.\xe2\x80\x9d \xe2\x80\x9cRacially\xe2\x80\x9d based life expectancy and related data may not be utilized to find a reduced\nlife expectancy for a claimant in computing damages based on predictions of life expectancy. As\nindicated below, the unreliability of \xe2\x80\x9crace\xe2\x80\x9d as a predictor of life expectancy as well as normative\nconstitutional requirements of equal treatment and due process support this conclusion.\nThe court\xe2\x80\x99s findings of fact and conclusions of law disregarded all \xe2\x80\x9crace\xe2\x80\x9d-based computations of\nlife expectancy and applied predictions for the general male population, and particularly those\nsuffering from quadriplegia. Properly rejected in predicting life expectancy were \xe2\x80\x9cracially\xe2\x80\x9d based\nstatistics.\nI. Factual Unreliability of \xe2\x80\x9cRace\xe2\x80\x9d-Based Statistics\nIn the United States, there has been \xe2\x80\x9cracial mixing\xe2\x80\x9d among \xe2\x80\x9cWhites,\xe2\x80\x9d \xe2\x80\x9cAfricans,\xe2\x80\x9d \xe2\x80\x9cNative\nAmericans,\xe2\x80\x9d and individuals of other \xe2\x80\x9cracial\xe2\x80\x9d and \xe2\x80\x9cethnic\xe2\x80\x9d backgrounds for more than three and a\nhalf centuries. See, e.g., Annette Gordon-Reed, The Hemingses of Monticello: An American Family\n660 (2008) (Thomas Jefferson fathered children with his \xe2\x80\x9cmixed blood\xe2\x80\x9d slave Sally Hemings. \xe2\x80\x9c[T]he\nchoices the children of Sally Hemings and Thomas Jefferson made would separate their lines forever.\nThree would live in the white world, and one would remain in the black world.\xe2\x80\x9d); Gregory Howard\nWilliams, Life on the Color Line: The True Story of a White Boy Who Discovered He Was Black (1996).\nIn Plessy v. Ferguson, 163 U.S. 537 (1896) (approving separation of \xe2\x80\x9cWhites\xe2\x80\x9d and \xe2\x80\x9cBlacks\xe2\x80\x9d on the\ngrounds of \xe2\x80\x9csocial\xe2\x80\x9d inferiority) the plaintiff was apparently 7/8th \xe2\x80\x9cWhite\xe2\x80\x9d and 1/8th \xe2\x80\x9cBlack.\xe2\x80\x9d See also\nDred Scott v. Sandford, 60 U.S. 393 (1856) (\xe2\x80\x9cracial\xe2\x80\x9d inferiority of \xe2\x80\x9cBlacks,\xe2\x80\x9d who could not be citizens).\nClear-eyed observers of the American scene scoff at the use of \xe2\x80\x9cblood\xe2\x80\x9d in characterizing \xe2\x80\x9crace.\xe2\x80\x9d See,\ne.g., Mark Twain, Pudd\xe2\x80\x99nhead Wilson (1894) (\xe2\x80\x9cWhite\xe2\x80\x9d and \xe2\x80\x9cBlack\xe2\x80\x9d babies who looked \xe2\x80\x9cWhite\xe2\x80\x9d taken\nhome by wrong mothers and raised inadvertently in \xe2\x80\x9cwrong \xe2\x80\x98racial\xe2\x80\x99 categories\xe2\x80\x9d).\nStatistical reliance on \xe2\x80\x9crace\xe2\x80\x9d leads to such questions as whether Plessy would have been\ncategorized today as \xe2\x80\x9cAfrican-American\xe2\x80\x9d for life expectancy purposes. In a more recent example,\n\xe2\x80\x9cracially\xe2\x80\x9d characterizing for statistical purposes in a negligence lawsuit the current Democrat Party\npresidential candidate, born of a \xe2\x80\x9cWhite\xe2\x80\x9d American mother and an \xe2\x80\x9cAfrican\xe2\x80\x9d citizen of Kenya,\nwould be considered absurd by most Americans. See Colm T\xc3\xb3ib\xc3\xadn, James Baldwin & Barack Obama,\nN.Y. Rev., Oct. 23, 2008, at 18 (\xe2\x80\x9cWhen Obama was a child, he wrote, \xe2\x80\x98my father\xe2\x80\xa6was black as pitch,\nmy mother white as milk.\xe2\x80\x99\xe2\x80\x9d). Reliance on \xe2\x80\x9crace\xe2\x80\x9d-based statistics in estimating life expectancy of\nindividuals for purposes of calculating damages is not scientifically acceptable in our current\nheterogeneous population. As indicated below, \xe2\x80\x9crace\xe2\x80\x9d is largely a social construct inappropriate in\nassessing damages in a negligence suit.\nA. \xe2\x80\x9cRace\xe2\x80\x9d as Biological Fiction\nFranz Boas, the great Columbia University Anthropologist, pointed out that \xe2\x80\x9c[e]very\nclassification of mankind must be more or less artificial\xe2\x80\x9d; he exposed much of the false cant of\n\xe2\x80\x9cracial\xe2\x80\x9d homogeneity when he declared that \xe2\x80\x9cno racial group is genetically \xe2\x80\x98pure.\xe2\x80\x99\xe2\x80\x9d Quoted in Keay\nDavidson, Franz Boas in 3 American National Biography 83 (1999). See also The Shaping of\n\n\x0cCASES & CRITIQUE\n\n237\n\nAmerican Anthropology, 1883\xe2\x80\x931911, A Franz Boas Reader 273 (George W. Stocking, Jr., ed., 1974)\n(\xe2\x80\x9cif we base our inferences entirely on the results of anatomical study, it would seem that there is no\nreason to believe that the bulk of the people constituting two distinct races might not be\napproximately on the same level\xe2\x80\x9d as to mental ability); Scott L. Malcomson, One Drop of Blood: The\nAmerican Misadventure of Race 277 (2000) (\xe2\x80\x9cwithin the premodern written records of, globally\nspeaking, light-skinned people, references to white people as white people, as a race, are remarkably\nscarce\xe2\x80\x9d); Orlando Patterson, Rituals of Blood: Consequences of Slavery in Two American Centuries\n155\xe2\x80\x9358, 165\xe2\x80\x9366 (1998) (intermarriage); The Concept of Race xi (Ashley Montagu, ed., 1964) (\xe2\x80\x9cthe\nbiological concept of race has become unacceptable to a growing number of biologists\xe2\x80\x9d); Douglas S.\nMassey & Nancy A. Denton, American Apartheid, Segregation and the Making of the Underclass 9\n(1993) (\xe2\x80\x9cOur fundamental argument is that racial segregation\xe2\x80\x94and its characteristic institutional\nform, the black ghetto\xe2\x80\x94are the key structural factors responsible for the perpetuation of black\npoverty in the United States.\xe2\x80\x9d); James C. King, The Biology of Race 146 (2d ed.1981) (\xe2\x80\x9cestimates of\nthe proportion of genetic material from white ancestry in American blacks range all the way from a\nfew percent to more than 50 percent\xe2\x80\x9d).\nAn anthropologist who has written extensively on \xe2\x80\x9crace\xe2\x80\x9d and its evolution in American society notes:\n\xe2\x80\x9cDespite legal and social attempts to prohibit intermarriage or intermating, some genetic mixture\nstill occurred. In response, the United States had to resort to a fiction to help preserve the\ndistinctiveness of the White/Black racial (and social) dichotomy. North Americans define as Black\nanyone who has known African ancestors, a phenomenon known and introduced by historians over\nhalf a century ago as the \xe2\x80\x98one drop rule.\xe2\x80\x99 There is mounting historical evidence that this modern\nideology of race took on a life of its own in the latter half of the 19th century\xe2\x80\xa6[a]s a paradigm for\nportraying the social reality of permanent inequality as something that was natural.\xe2\x80\x9d Audrey\nSmedley & Brian D. Smedley, Race as Biology Is Fiction, Racism as a Social Problem is Real, 60:1 Am.\nPsychologist 16, 20 (2005) (referred to herein as an article by Professor Smedley). Professor Smedley\nfinds that \xe2\x80\x9cthe ideology [of \xe2\x80\x9crace\xe2\x80\x9d] arose as a rationalization and justification for human slavery at a\ntime when Western European societies were embracing philosophies promoting individual and\nhuman rights, liberty, democracy, justice, brotherhood, and equality.\xe2\x80\x9d She cites Robert Moore, a\nsociologist from the University of Liverpool, who \xe2\x80\x9cobserved that in the mid-1800s, a consensus\nemerged that human cultural differences were of a permanent kind, expressing underlying natural\ndifferences.\xe2\x80\x9d Professor Moore quotes Alexis de Tocqueville, who as an early observer of American\nlife was among the first to recognize this conception of \xe2\x80\x9crace,\xe2\x80\x9d writing that \xe2\x80\x9cthe existence of innate\nand immutable racial characteristics is to be regarded with skepticism and theories founded upon\nsuch doctrine are mere rationalizations for slavery and other forms of racial oppression.\xe2\x80\x9d\nProfessor Smedley cautions against scientific investigations that focus on justifying the\ndifferences between \xe2\x80\x9cracial\xe2\x80\x9d groups: \xe2\x80\x9cRacialized science, with its emphasis on identifying immutable\ndifferences between racial groups, can be expected only to maintain and reinforce existing racial\ninequality, in that its adherents indirectly argue that no degree of government intervention or social\nchange will alter the skills and abilities of different racial groups. The disproportionate\nrepresentation of some \xe2\x80\x98racial\xe2\x80\x99 groups (e.g., African Americans, American Indians) among lower\nsocioeconomic tiers can therefore be explained as an unavoidable byproduct of human evolution.\nYet reinforcing this widely held social stereotype of racial inferiority risks limiting individual human\npotential, in that individuals\xe2\x80\x99 abilities and opportunities would likely be assessed in relation to their\nracial group.\xe2\x80\x9d\nDNA technology finds little variation among \xe2\x80\x9craces\xe2\x80\x9d (humans are genetically 99.9% identical),\nand it is difficult to pinpoint any \xe2\x80\x9cracial identity\xe2\x80\x9d of an individual through his or her genes.\nInternational gene mapping projects have only revealed variations in strings of DNA that correlate\nwith geographic differences in phenotypes among humans around the world, the reality being that\nthe diversity of human biology has little in common with socially constructed \xe2\x80\x9cracial\xe2\x80\x9d categories.\nWhile \xe2\x80\x9crace\xe2\x80\x9d may be a social construct, many policymakers and courts insist that it remains a\nsignificant predictor of access to societal goods and resources. \xe2\x80\x9cRacial\xe2\x80\x9d and \xe2\x80\x9cethnic\xe2\x80\x9d disparities in\nquality of health care, for example, remain substantial across a broad range of medical services. But\nthose disparities are associated with socioeconomic differences and tend to diminish significantly\nand, in a few cases, to disappear altogether when socioeconomic factors are controlled. By allowing\n\n\x0c238\n\nTORT LAW\n\nthe use of \xe2\x80\x9crace\xe2\x80\x9d-based life expectancy tables, which are based on historical data, courts are\nessentially reinforcing the underlying social inequalities of our society rather than describing a\nsignificant biological difference.\nB. Unreliability of \xe2\x80\x9cRacial\xe2\x80\x9d Categories\nIn 1977, the Office of Management and Budget (OMB) issued Statistical Policy Directive\nNumber 15, \xe2\x80\x9cRace and Ethnic Standards for Federal Statistics and Administrative Reporting.\xe2\x80\x9d The\ndirective established four \xe2\x80\x9cracial\xe2\x80\x9d categories (\xe2\x80\x9cAmerican Indian or Alaskan Native,\xe2\x80\x9d \xe2\x80\x9cAsian or\nPacific Islander,\xe2\x80\x9d \xe2\x80\x9cBlack,\xe2\x80\x9d and \xe2\x80\x9cWhite\xe2\x80\x9d) for federal legislative, programmatic and administrative\npurposes. The OMB revised these standards in October of 1997, creating five groups instead of four\nby splitting \xe2\x80\x9cAsian\xe2\x80\x9d and \xe2\x80\x9cNative Hawaiian or Other Pacific Islander.\xe2\x80\x9d The 2000 census also added a\nsixth \xe2\x80\x9cracial\xe2\x80\x9d set, \xe2\x80\x9cSome Other Race,\xe2\x80\x9d and allowed responders to choose more than one category.\nThe catch-all of \xe2\x80\x9cSome Other Race,\xe2\x80\x9d which was meant to \xe2\x80\x9ccapture responses such as Mulatto, Creole,\nand Mestizo,\xe2\x80\x9d also included a write-in option.\nDespite the 2000 census\xe2\x80\x99 more detailed self-categorization system, demographic studies that use\npre-2000 census data continue to define \xe2\x80\x9crace\xe2\x80\x9d by using the 1977 OMB directive. See, e.g.,\nChristopher J.L. Murray et al., Eight Americas: Investigating Mortality Disparities across Races,\nCounties, and Race-Counties in the United States, 3:9 PLoS Med. 1513 (2006); Martha Chamallas,\nQuestioning the Use of Race-Specific and Gender-Specific Economic Data in Tort Litigation: A\nConstitutional Argument, 63 Fordham L. Rev. 73 (1994) (\xe2\x80\x9cThe tables presented in [a practitioner\xe2\x80\x99s\ntext for calculating lost earning capacity] are the P-60 Series (for 1977\xe2\x80\x9390) from the Current\nPopulation Reports published by the United States Bureau of the Census\xe2\x80\xa6. As was the case for most\ngovernment data collections for these periods, race is reduced to either black or white; there is no\nseparate breakdown for other racial/ethnic groups.\xe2\x80\x9d).\nLife expectancy tables are based on historical data and thus largely rely on the OMB\xe2\x80\x99s former\narchaic \xe2\x80\x9cracial\xe2\x80\x9d analysis. This means that the tables frequently employed by courts in determining\ntort damages fail to account for the nuanced reality of \xe2\x80\x9cracial\xe2\x80\x9d heritage in the United States today.\nAfter hundreds of years of sexual mixings, there continues to be no socially sanctioned inbetween classification of \xe2\x80\x9crace\xe2\x80\x9d in America. Even researchers investigating the differences between\nthe life expectancies of \xe2\x80\x9cBlack\xe2\x80\x9d and \xe2\x80\x9cWhite\xe2\x80\x9d Americans admit that the \xe2\x80\x9cpresently available summary\nmeasures such as age-adjusted mortality and estimated life expectancy are crude\xe2\x80\x9d and \xe2\x80\x9cmay mask\nspecial successes and/or problems for specific age categories/diseases or in specific local\npopulations.\xe2\x80\x9d Robert S. Levine et al., Black\xe2\x80\x93White Inequalities in Mortality and Life Expectancy,\n1933\xe2\x80\x931999: Implications for Healthy People 2010, 116 Pub. Health Rep. 474 (Sept.-Oct. 2001); see\nalso Murray, supra, at 1521 (\xe2\x80\x9cThe most important limitation of the data used for our analysis is that\nreported race in the census, used for population estimates, may be different from race in mortality\nstatistics, where race may be reported by the family, the certifying physician, or the funeral\ndirector.\xe2\x80\x9d). Even if reliance on \xe2\x80\x9crace\xe2\x80\x9d-based statistical projections made factual sense in the United\nStates, available statistics do not appear to account for what might be called \xe2\x80\x9cblood ratios,\xe2\x80\x9d in view\nof the American reality of long-term \xe2\x80\x9cracial\xe2\x80\x9d mixing.\nC. Socio-Economic Status and \xe2\x80\x9cRace\xe2\x80\x9d\nPutting aside the question of the fallacy of treating all \xe2\x80\x9cdark-skinned\xe2\x80\x9d Americans as completely\ndifferent from \xe2\x80\x9clight-skinned\xe2\x80\x9d Americans in predicting life expectancy, socio-economic factors have\na large role in influencing length of life. While many sociologists, epidemiologists, and other\nresearchers have noted \xe2\x80\x9c[t]he broad influence of race/ethnicity and socioeconomic position on\nfunctional status, active life expectancy, and mortality,\xe2\x80\x9d Arline T. Geronimus et al., Inequality in Life\nExpectancy, Functional Status, and Active Life Expectancy across Selected Black and White\nPopulations in the United States, 38:2 Demography 227, 227 (2001), the influence of socio-economic\nfactors is often masked by \xe2\x80\x9crace.\xe2\x80\x9d See Levine, supra, at 482 (\xe2\x80\x9crace itself may be largely a surrogate for\nother factors, especially differences in environmental exposures\xe2\x80\x9d). Reliable studies have found that\n\xe2\x80\x9c[t]he relationships between socioeconomic position or race/ethnicity and health may be modified\nby geographic influence and community conditions that contextualize and structure these\nrelationships.\xe2\x80\x9d Geronimus, supra, at 227. As one group of researchers has cautioned, \xe2\x80\x9cwhile race-\n\n\x0cCASES & CRITIQUE\n\n239\n\nbased mortality ratios and absolute risks are important, there are clear limitations to their use as\nindicators of health,\xe2\x80\x9d including the appropriateness and reliability of the \xe2\x80\x9cracial\xe2\x80\x9d and \xe2\x80\x9cethnic\xe2\x80\x9d\ncategories used in statistical analysis. Levine, supra, at 481\xe2\x80\x9382.\nThe impact of socio-economic status (SES) on life expectancy has long been recognized. See\nJoseph J. Sudano & David W. Baker, Explaining U.S. racial/ethnic disparities in health declines and\nmortality in late middle age: The roles of socioeconomic status, health behaviors, and health insurance,\n62 Soc. Sci. & Med. 909 (2006) (\xe2\x80\x9cOur results are also consistent with previous studies that have found\nlarge \xe2\x80\x98direct\xe2\x80\x99 (or residual) effects of SES on health that were not explained by differences in health\nbehaviors.\xe2\x80\x9d). Aside from \xe2\x80\x9cbaseline health,\xe2\x80\x9d the next \xe2\x80\x9cdominant explanation for the worse health\noutcomes for blacks and Hispanics was SES.\xe2\x80\x9d Id. \xe2\x80\x9cIn contrast, health insurance and health behaviors\nexplained little of the racial/ethnic differences in health outcomes.\xe2\x80\x9d Id.; see also Murray, supra, at\n1522 (\xe2\x80\x9cImportant research in the past few decades has illustrated the critical role of individual and\ncommunity-level socio-economic factors, be it in absolute or relative terms, in health outcomes\xe2\x80\x9d);\nLloyd B. Potter, Socioeconomic Determinants of White and Black Males\xe2\x80\x99 Life Expectancy Differentials,\n1980, 28:2 Demography 303 (1991) (\xe2\x80\x9cThere is a long-standing consensus that a negative relationship\nexists between socioeconomic conditions and the levels of mortality experienced by a population.\xe2\x80\x9d).\nMore detailed investigations into the life expectancy gap between \xe2\x80\x9cWhite\xe2\x80\x9d and \xe2\x80\x9cBlack\xe2\x80\x9d\nAmericans have shown that life expectancy varies within \xe2\x80\x9cracial\xe2\x80\x9d groups by economic characteristics\nand geography. See Geronimus, supra, at 244 (\xe2\x80\x9cOur analyses revealed heterogeneity in length and\nquality of life within the black and the white populations with respect to their communities\xe2\x80\x99\neconomic characteristics and, to some extent, the location of their residence.\xe2\x80\x9d). Given the significant\nimpact of socio-economic factors, it is natural for courts to be concerned with the use of life\nexpectancy tables that ignore important distinctions such as education, place of residency, and\nemployment, collapsing all members of a \xe2\x80\x9cracial\xe2\x80\x9d group into a single number. Gross statistical tables\ndo not answer the question: how does the life expectancy of well-off or middle-class \xe2\x80\x9cAfricanAmericans\xe2\x80\x9d compare to that of poor \xe2\x80\x9cAfrican-Americans?\xe2\x80\x9d\nIn a national study of twenty-three local areas, researchers found that \xe2\x80\x9cAfrican American\nresidents of advantaged urban areas have substantially higher life expectancies than their poor urban\ncounterparts; in some cases their life expectancies approach the white national average.\xe2\x80\x9d Geronimus,\nsupra, at 241. That study also found that \xe2\x80\x9cWhite residents of urban poor areas have mortality profiles\ncomparable to those of black residents of poor rural areas and blacks nationwide,\xe2\x80\x9d and \xe2\x80\x9csomewhat\nworse than residents of relatively advantaged black urban areas.\xe2\x80\x9d In fact, \xe2\x80\x9cAfrican-Americans\xe2\x80\x9d\nresiding \xe2\x80\x9cin the advantaged population of New York City fare as well as whites nationwide.\xe2\x80\x9d Id. at\nIn studies targeting cardiovascular diseases (CVD), researchers found that after controlling for\nrisk level, \xe2\x80\x9cthere was no consistent pattern in CVD mortality differences for Black and White men\naccording to income level. As shown in other research, the higher overall CVD mortality rate among\nBlack men than among White men was largely explained by differences in zip code area incomes\nand risk factor levels.\xe2\x80\x9d Avis J. Thomas et al., Race/Ethnicity, Income, Major Risk Factors, and\nCardiovascular Disease Mortality, 95:8 Am. J. Pub. Health 1417, 1421 (2005).\nWhen determining tort damages based upon an injured individual\xe2\x80\x99s future life span and potential\nneeds, consideration must be given to the fact that changing a person\xe2\x80\x99s socio-economic status may\nhave an impact upon his or her life expectancy. While studies have found that expanding health\ninsurance alone would not greatly impact the life expectancy or morbidity of individuals, it may well\nbe that elevating a group of individuals from a lower socio-economic class to a higher one would\nchange their overall cause-of-death structure and enhance their health and lifespan. Major causes of\ndeath in \xe2\x80\x9cAfrican-American\xe2\x80\x9d populations include homicide, HIV, unintentional injuries, and other\nfactors associated with poverty and low socio-economic status. See generally Sam Harper et al., Trends\nin the Black\xe2\x80\x93White Life Expectancy Gap in the United States, 1983\xe2\x80\x932003, 297:11 J. Am. Med. Ass\xe2\x80\x99n\n1224 (2007); see also Potter, supra, at 304 (\xe2\x80\x9cImprovement of socioeconomic conditions is associated\nwith a change from a cause-of-death structure characterized by infectious and parasitic diseases\ntoward one characterized by degenerative disease\xe2\x80\xa6such a shift will lead to higher life expectancy.\xe2\x80\x9d).\nThe findings of the studies cited above reinforce the conclusion that despite a documented gap\nin life expectancy between \xe2\x80\x9cBlack\xe2\x80\x9d and \xe2\x80\x9cWhite\xe2\x80\x9d Americans, the simple characterization of\nindividuals as \xe2\x80\x9cBlack\xe2\x80\x9d or \xe2\x80\x9cWhite\xe2\x80\x9d is not only misleading, it risks masking the complex interactions\n\n\x0c240\n\nTORT LAW\n\nbetween a host of genetic and socio-economic factors. While some researchers have suggested that\nhigher socio-economic position may not impact \xe2\x80\x9cAfrican-American\xe2\x80\x9d health as directly as other\npopulations (due to stress-related diseases potentially linked to structural racism), this is not reason\nfor courts to enforce the negative impacts of lower socio-economic status while ignoring the\ndiversity within populations.\nD. Legal Decisions on \xe2\x80\x9cRace\xe2\x80\x9d\nA 1905 decision by a federal court in New York relied on \xe2\x80\x9crace\xe2\x80\x9d-based statistics and \xe2\x80\x9cracial\xe2\x80\x9d\ncategories in reducing damages in an admiralty case. The Saginaw and The Hamilton, 139 F. 906\n(S.D.N.Y. 1905); see Jennifer B. Wriggins, Damages in Tort Litigation: Thoughts on Race and\nRemedies, 1865\xe2\x80\x932007, 27 Rev. Litig. 37 (2007). Two steamships collided, resulting in the deaths of\nsome passengers and crewmembers. See In re Clyde S.S. Co., 134 F. 95 (S.D.N.Y. 1904). Wrongful\ndeath actions were brought for six \xe2\x80\x9cColored\xe2\x80\x9d and two \xe2\x80\x9cWhite\xe2\x80\x9d persons killed in the accident.\nRejecting the use of standard mortality tables to predict the life expectancies of all the deceased, the\ncourt cited census data summarizing differences in \xe2\x80\x9cWhite\xe2\x80\x9d and \xe2\x80\x9cColored\xe2\x80\x9d life expectancies in\njustifying its reduction of awards. At that time census respondents did not have the option of\nselecting more than one \xe2\x80\x9crace\xe2\x80\x9d to identify themselves. Professor Jennifer B. Wriggins found that \xe2\x80\x9con\naverage [the Saginaw court] lowered the awards for the deaths of blacks ten percent more than the\nawards for the deaths of whites and [the court] slashed three of the awards for blacks by forty percent\nor more.\xe2\x80\x9d Wriggins, supra, at 56; see also Marc Galanter, Bhopals, Past and Present: The Changing\nLegal Response to Mass Disaster, 10 Windsor Yearbook of Justice 151 (1990) (describing the Hawk\xe2\x80\x99s\nNest Tunnel disaster in early 1930s West Virginia in which over 700 unprotected laborers were\nvictims of acute silicosis and settlements ranged from $30 for a single \xe2\x80\x9cBlack\xe2\x80\x9d to $1600 for a \xe2\x80\x9cWhite\xe2\x80\x9d\nFamily); Monograph, Individual Justice in Mass Tort Litigation 7 (1995) (same).\nIt should be noted in assessing The Saginaw that the case was decided shortly after Plessy,\napproving \xe2\x80\x9cracial\xe2\x80\x9d segregation of \xe2\x80\x9cAfrican-Americans.\xe2\x80\x9d Plessy\xe2\x80\x99s \xe2\x80\x9cracial\xe2\x80\x9d basis was entirely rejected\nby Brown v. Board of Education, 347 U.S. 483 (1954). The Saginaw has no precedential value.\n1. Future Earnings\nCourts are increasingly troubled by \xe2\x80\x9crace\xe2\x80\x9d- and gender-based figures for calculating loss of future\nincome. The district court in United States v. Bedonie, 317 F. Supp.2d 1285 (D. Utah 2004), noted\nthat \xe2\x80\x9csurprisingly the reported cases have almost completely neglected the question\xe2\x80\x9d of whether to\nuse sex- and \xe2\x80\x9crace\xe2\x80\x9d-neutral statistics. After receiving an expert report (for restitution purposes) that\nreduced the estimate of lost income based on the fact that a victim was \xe2\x80\x9cNative American,\xe2\x80\x9d that\ncourt directed recalculation without regard to \xe2\x80\x9crace\xe2\x80\x9d or gender. Avoiding reaching any\nconstitutional questions, the court chose to \xe2\x80\x9cexercise its discretion in favor of victims of violent\ncrime and against the possible perpetuation of inappropriate stereotypes,\xe2\x80\x9d especially \xe2\x80\x9cwhere the\ndefendants have deprived their victims of the chance to excel in life beyond predicted statistical\naverages.\xe2\x80\x9d The court ultimately utilized gender-and \xe2\x80\x9crace\xe2\x80\x9d-neutral figures in its findings.\nOne court refused to use \xe2\x80\x9cracial\xe2\x80\x9d statistics in calculating tort damages for loss of future income\nwhen the plaintiff was half \xe2\x80\x9cBlack\xe2\x80\x9d and half \xe2\x80\x9cWhite.\xe2\x80\x9d Wheeler Tarpeh-Doe v. United States, 771 F.\nSupp. 427 (D.D.C. 1991). The defendant argued that the wage earnings projections for \xe2\x80\x9cBlack\xe2\x80\x9d men\nwere the appropriate figures for the plaintiff, whose mother was \xe2\x80\x9cWhite\xe2\x80\x9d and father was \xe2\x80\x9cBlack.\xe2\x80\x9d\nApparently \xe2\x80\x9crace\xe2\x80\x9d-based life expectancy figures were not introduced in the case. The court held it\n\xe2\x80\x9cinappropriate to incorporate current discrimination resulting in wage differences between the sexes\nor races or the potential for any future such discrimination into a calculation for damages resulting\nfrom lost wages.\xe2\x80\x9d It used \xe2\x80\x9cthe average earnings of all persons.\xe2\x80\x9d See also Laura Greenberg,\nCompensating the Lead Poisoned Child: Proposals for Mitigating Discriminatory Damage Awards, 28\nB.C. Envtl. Aff. L. Rev. 429, 447 (2001) (arguing that \xe2\x80\x9crace\xe2\x80\x9d-based economic statistics \xe2\x80\x9creinforce the\nstatus quo of racial disparities\xe2\x80\x9d and \xe2\x80\x9cpropel[] race to the forefront of predictions about individual\nachievement\xe2\x80\x9d; advocating use of \xe2\x80\x9crace\xe2\x80\x9d-neutral statistics).\nCanadian courts have refused to use gender-specific wage calculations in determining damages.\nSee, e.g., Walker v. Ritchie, 119 A.C.W.S. (3d) (Ont. Sup. Ct. J. Jan. 3, 2003) (using statistical figures\nwhich reflected the entire population).\n\n\x0cCASES & CRITIQUE\n\n241\n\n2. Work-Life Expectancy\nIn an action for damages by an injured seaman, the plaintiff presented statistics on work-life\nexpectancy modified to exclude \xe2\x80\x9crace\xe2\x80\x9d as a factor; the defendant challenged the increased work-life\nexpectancy that resulted. Theodile v. Delmar Systems, Inc., 2007 WL 2491808 at *8 (W.D. La. 2007).\nThe district court refused to upset the jury\xe2\x80\x99s award in the \xe2\x80\x9crace\xe2\x80\x9d-neutral amount suggested by\nplaintiff\xe2\x80\x99s expert. Another district court rejected an expert calculation that reduced a female tort\nvictim\xe2\x80\x99s estimated working life by 40% based on a historical statistic about the number of years\nfemales average in the workforce. Reilly v. United States, 665 F. Supp. 976 (D.R.I. 1987).\nIn administering the September 11th Victim Compensation Fund, Special Master Kenneth R.\nFeinberg based estimations of remaining years of work-life on the victim\xe2\x80\x99s age, using statistics for\nthe general population of active males in the United States for all claimants and ignoring \xe2\x80\x9cracial\xe2\x80\x9d\ndifferences. September 11th Victim Compensation Fund of 2001, 67 Fed. Reg. 11,233, 11,238 (Mar.\n13, 2002); see generally Kenneth R. Feinberg, What is Life Worth? (2005).\n3. Life Expectancy\nIn the context of Title VII, the Supreme Court noted that while \xe2\x80\x9cactuarial studies could\nunquestionably identify differences in life expectancy based on race or national origin, as well as\nsex,\xe2\x80\x9d Congress has outlawed classifications based on \xe2\x80\x9crace,\xe2\x80\x9d national origin, and sex. City of Los\nAngeles, Dep\xe2\x80\x99t of Water & Power v. Manhart, 435 U.S. 702 (1978). Thus, \xe2\x80\x9ceven a true generalization\nabout the class is an insufficient reason for disqualifying an individual to whom the generalization\ndoes not apply.\xe2\x80\x9d Id. at 708; see also Jill Gaulding, Race, Sex, and Genetic Discrimination in Insurance:\nWhat\xe2\x80\x99s Fair?, 80 Cornell L. Rev. 1646, 1659 & n. 86 (collecting state statutes forbidding \xe2\x80\x9crace\xe2\x80\x9d\nclassifications by insurers). \xe2\x80\x9cRacial\xe2\x80\x9d statistics present an especially strong argument for exclusion,\nsince, as already noted, the question of \xe2\x80\x9crace\xe2\x80\x9d is ambiguous, whereas gender is generally conceded.\nII. Unconstitutionality of \xe2\x80\x9cRace\xe2\x80\x9d as a Criterion for Assessing Damages\nA. Equal Protection\nFor half a century the Supreme Court has rejected on equal protection grounds \xe2\x80\x9crace\xe2\x80\x9d-based\ndiscrimination. See, e.g., Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551\nU.S. 701 (2007) (allocating students to particular schools based on \xe2\x80\x9crace\xe2\x80\x9d unconstitutional); Shaw v.\nReno, 509 U.S. 630 (1993) (redistricting based on \xe2\x80\x9crace\xe2\x80\x9d impermissible); Palmore v. Sidoti, 466 U.S.\n429 (1984) (consideration of \xe2\x80\x9crace\xe2\x80\x9d in child custody decision unconstitutional despite possibility\nthat societal \xe2\x80\x9cracial\xe2\x80\x9d biases might affect child); Loving v. Virginia, 388 U.S. 1 (1967) (\xe2\x80\x9crace\xe2\x80\x9d-based\nrestrictions on marriage unconstitutional); Brown, supra (abolishing segregation in public schools);\nBolling v. Sharpe, 347 U.S. 497 (1954) (applying rationale of Brown to federal government); see also,\ne.g., Richard Kluger, Simple Justice (2d ed. 2004); Jack Greenberg, Crusaders in the Courts (1994);\nJack Greenberg, Race Relations and American Law (1959); Jack B. Weinstein, Benjamin N. Cardozo\nLecture: The Role of Judges In A Government Of, By, and For the People (2007).\nAs Professor Martha Chamallas notes, \xe2\x80\x9cwhen experts rely on race or gender-based statistics to\ncalculate tort damages, we tend not to notice the discrimination and to accept it as natural and\nunproblematic.\xe2\x80\x9d Civil Rights in Ordinary Tort Cases: Race, Gender, and the Calculation of Economic\nLoss, 38 Loy. L.A. L. Rev. 1435, 1442 (2005). \xe2\x80\x9cRacial\xe2\x80\x9d classifications of individuals are \xe2\x80\x9csuspect\ncategories,\xe2\x80\x9d see United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4 (1938), meaning that\nstate action in reliance on \xe2\x80\x9crace\xe2\x80\x9d-based statistics triggers strict scrutiny. Cf. Charleen Hsuan, Note\nMedicaid Coverage for Race-Based Drugs, 41 Colum. J. L. & Soc. Probs. 443 (2008) (arguing that\nstrict scrutiny under equal protection would apply to state Medicaid agency decisions to deny offlabel coverage for FDA-approved \xe2\x80\x9crace\xe2\x80\x9d-based drugs). Judicial reliance on \xe2\x80\x9cracial\xe2\x80\x9d classifications\nconstitutes state action. See Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) (permitting\nperemptory jury challenges based on \xe2\x80\x9crace\xe2\x80\x9d is state action violating equal protection); Shelley v.\nKraemer, 334 U.S. 1 (1948) (state action in judicial enforcement of restrictive covenants based on\n\xe2\x80\x9crace\xe2\x80\x9d); see also Chamallas, Questioning the Use of Race-Specific and Gender-Specific Economic Data\nin Tort Litigation: A Constitutional Argument, supra, at 106 (\xe2\x80\x9cBy conceding the relevance of racebased or gender-based data through its admission into evidence\xe2\x80\xa6the judge necessarily leads the\njury to believe that gender and race are legally permissible factors and thus cannot be said to be\n\n\x0c242\n\nTORT LAW\n\nneutral on the issue.\xe2\x80\x9d) Equal protection in this context demands that the claimant not be subjected\nto a disadvantageous life expectancy estimate solely on the basis of a \xe2\x80\x9cracial\xe2\x80\x9d classification.\nB. Due Process\nThere is a right\xe2\x80\x94in effect a property right\xe2\x80\x94to compensation in cases of negligently caused\ndamage to the person under state and federal law. See Martinez v. California, 444 U.S. 277 (1980)\n(\xe2\x80\x9c[a]rguably\xe2\x80\x9d a tort cause of action created by a State constitutes \xe2\x80\x9ca species of \xe2\x80\x98property\xe2\x80\x99 protected\nby the Due Process Clause\xe2\x80\x9d and there is a federal \xe2\x80\x9cinterest in protecting the individual citizen from\nstate action that is wholly arbitrary or irrational\xe2\x80\x9d); see also John C.P. Goldberg, The Constitutional\nStatus of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 Yale L.J. 524\n(2005) (constitutional right to a body of tort law for the purpose of redressing private wrongs);\nWeinstein, Benjamin N. Cardozo Lecture: The Role of Judges In A Government Of, By, and For the\nPeople, supra, at 495\xe2\x80\x93506 (same).\nBy allowing use of \xe2\x80\x9crace\xe2\x80\x9d-based statistics at trial, a court would be creating arbitrary and\nirrational state action. \xe2\x80\x9cThe form and content of statistical evidence is shaped by the requirements\nof the substantive law.\xe2\x80\x9d David C. Baldus & James W.L. Cole, Statistical Proof of Discrimination 10\n(1980). Were the court to apply an ill-founded assumption, automatically burdening on \xe2\x80\x9cracial\xe2\x80\x9d\ngrounds a class of litigants who seek compensation, there would be a denial of due process. Cf.\nBrinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673 (1930) (\xe2\x80\x9cfederal guaranty of due process\nextends to state action through its judicial branch of government\xe2\x80\x9d).\nThe legal system does not work fairly and with due process if one class of litigants is unduly\nburdened in litigation through the application of inappropriate \xe2\x80\x9crace\xe2\x80\x9d-based statistics. Where, as in\nthe instant case, no attempt was made to justify the use of \xe2\x80\x9cracial\xe2\x80\x9d statistics by the City, the due\nprocess rights of the defendant cannot be said to have been affected.\nIII. Application of Law to Facts\nThere is no factual basis for discriminating against this claimant by finding a reduced life\nexpectancy based upon \xe2\x80\x9crace.\xe2\x80\x9d That conclusion is particularly sound in the instant case where the\ndamages awarded are designed to extend claimant\xe2\x80\x99s life by providing him with the best medical and\nother care\xe2\x80\x94more than the equivalent of what the average American quadriplegic could expect.\nConstitutional normative doctrine also supports excluding \xe2\x80\x9crace\xe2\x80\x9d-based statistics. \xe2\x80\x9cAny decision\nto use a group-based projection into the future as the basis for a damage remedy also involves\nnormative judgments about the relevant frame of reference and the rate of future change.\xe2\x80\x9d Wriggins,\nsupra, at 56. The American reality reflects that \xe2\x80\x9cpeople do not fall naturally into discrete racial\ngroupings\xe2\x80\x9d and \xe2\x80\x9clegal classifications of race tend to be unrefined and often reflect ignorance of\ndifferences within a given category.\xe2\x80\x9d Chamallas, Questioning the Use of Race-Specific and GenderSpecific Economic Data in Tort Litigation: A Constitutional Argument, supra, at 113.\nReliance on \xe2\x80\x9crace\xe2\x80\x9d-based statistics in estimating life expectancy for purposes of calculating\ndamages in this case is rejected in computing life expectancy and damages.\n1.\n\nQUESTIONS\nKenton Revisited: Now that you\xe2\x80\x99ve read McMillan, should it matter that Kenton was\nplanning to be a lawyer before she suffered her injuries? How might giving weight to her\ncareer choice reinforce past discrimination and reproduce inequality in the future?\n\n2.\n\nReality Check: If courts refuse to consider a tort victim\xe2\x80\x99s gender, is it fair to the families\nof men who are left unable to work due to their injuries? If, as is factually the case, men\nin many professions earn more than women, is it right to leave families with less income\nif disability means a working father or husband can no longer earn his usual paycheck?\n\n3.\n\nProtected Characteristics: Should race (and gender) always be off-limits in damages\ncalculations? What about when calculating life expectancy? And what about other\ncharacteristics, like someone\xe2\x80\x99s religion or sexual orientation? Finally, can we rely on\nconstitutional rules to be an equalizing force when so many tort claims are resolved\nthrough settlement?\n\n\x0cCASES & CRITIQUE\n\n243\n\nB. Punitive Damages\nNATIONAL BY-PRODUCTS, INC. v. SEARCY HOUSE MOVING CO.\nSupreme Court of Arkansas (1987)\nDudley, Justice:\n\n\xc3\xa3\n\nThe sole issue in this tort case is whether an award of\npunitive damages should be upheld. We hold there was no\nsubstantial evidence to support the award of punitive\ndamages, and reverse\xe2\x80\xa6.\nOn July 11, 1985, Robert Foley was driving a large tractortrailer for appellant National By-Products, Inc. from\nBatesville south on Highway 167. At the same time, appellee\nSearcy House Moving Company was moving a house north\non the same highway. Appellee could not get the house\nthrough a bridge which was just north of Bald Knob, and, while the house was being adjusted on the\nhouse moving trailer, traffic was stopped and flagged around in the one lane of traffic still open.\nStacy McGee and Lorene Staggs were slowly starting to go through the open lane when appellant\nFoley, speeding in an over-weight truck smashed into the rear of their car, knocking it eighty feet\nforward, causing it to hit the house and trailer, and then to hit two bystanders. Appellant National\xe2\x80\x99s\ntruck also struck the house and then crashed into another tractor-trailer rig. Lorene Staggs died\ninstantly and Stacy McGee died seven hours later. The estates of Lorene Staggs and Stacy McGee\nfiled wrongful death actions against Foley and appellant National By-Products, Inc. and appellee\nmoving company. Defendants Foley and National By-Products and defendant moving company\nfiled cross-complaints against each other, each asking compensatory and punitive damages from the\nother. The cases were tried before a jury which returned compensatory damage awards of $3,000,000\nto the estate of Stacy McGee, $1,400,000 to the estate of Lorene Staggs, and $15,000 to appellee\nmoving company. In addition, separate punitive damage awards of $100,000 were given to each\nestate and to appellee moving company. The judgments in the wrongful death cases were satisfied\nand appellee moving company agreed to a remittitur of its compensatory damage award from\n$15,000 to $1,883.14, the stipulated amount of compensatory damages. Therefore, the only damage\naward involved in this appeal is the $100,000 punitive damage award made in favor of appellee\nmoving company and against appellant National By-Products Company.\nAppellant contends that the trial court erred in refusing to grant its motion for a judgment\nnotwithstanding the verdict. The argument is meritorious. An award of punitive damages is justified\nonly where the evidence indicates that the defendant acted wantonly in causing the injury or with\nsuch a conscious indifference to the consequences that malice may be inferred. We have previously\ndefined wantonness and conscious indifference to the consequences. In Ellis v. Ferguson, 385 S.W.2d\n154 (Ark. 1964), we said:\nWantonness is essentially an attitude of mind and imparts to an act of misconduct\na tortious character, such conduct as manifests a \xe2\x80\x9cdisposition of perversity.\xe2\x80\x9d Such\na disposition or mental state is shown by a person, when, notwithstanding his\nconscious and timely knowledge of an approach to an unusual danger and of\ncommon probability of injury to others, he proceeds into the presence of danger,\nwith indifference to consequences and with absence of all care. It is not necessary\nto prove that the defendant deliberately intended to injure the plaintiff. It is\nenough if it is shown that, indifferent to consequences, the defendant intentionally\nacted in such a way that the natural and probable consequence of his act was\ninjury to the plaintiff\xe2\x80\xa6.\nThe terms \xe2\x80\x9cwilfulness, or conscious indifference to consequences from which malice may be\ninferred,\xe2\x80\x9d as used in the decisions of this court, means such conduct in the face of discovered peril.\nIn other words, in order to superadd this element of damages by way of punishment, it must appear\n\xc3\xa3\n\nRuin Raider, Crashed (CC BY-NC-ND 2.0).\n\n\x0c244\n\nTORT LAW\n\nthat the negligent party knew, or had reason to believe, that his act of negligence was about to inflict\ninjury, and that he continued in his course with a conscious indifference to the consequences, from\nwhich malice may be inferred.\nIn the case at bar there was proof of gross negligence, but gross negligence is not sufficient to\njustify punitive damages. The facts, when viewed most favorably to appellee, reveal that Foley,\nappellant\xe2\x80\x99s driver, was late leaving Batesville and his truck weighed 80,480 pounds, which is 480\npounds over the legal limit. Foley had received six citations in the last year for driving an overweight\ntruck, and appellant had paid all of the citations. One of appellant\xe2\x80\x99s employees testified that the\ncompany had a disciplinary procedure for drivers who got an excessive number of overweight\ntickets, and he testified that Foley had an excessive number of such tickets, but admitted that Foley\nhad not been cautioned or disciplined for driving an overweight truck. Appellee\xe2\x80\x99s expert witness on\naccident reconstruction testified that the 480 pounds excess weight on the 80,000 pound rig was a\ncontributing, but insignificant, factor in the accident.\nBetween Batesville and the place of the accident, Foley exceeded the 55 miles per hour speed\nlimit while going downhill. He got so close to one car that all the driver of the car could see in his\nrearview mirror was the grill of Foley\xe2\x80\x99s tractor. He got extremely close to another car while\n\xe2\x80\x9ctailgating\xe2\x80\x9d downhill. Finally, he came around a curve at the crest of a small hill and had 804 feet of\nclear visibility to the bridge structure where the accident occurred. The house, which was sitting on\nthe trailer, at the bridge, was 17 feet high, 28 feet wide, and 36 feet long, and because of its added\nheight, could be seen from about 900 feet away. Foley either did not apply his brakes, or he applied\nthem but they did not function properly.\nAppellee\xe2\x80\x99s witnesses said Foley was going 60 to 70 miles per hour and made no effort to stop\neven though he went past a vehicle with a flashing warning light. They testified his brake lights did\nnot come on, the tires did not skid, there was no smoke from either the brakes or tires, and there\nwere no skid marks. However, appellee\xe2\x80\x99s expert brake witness testified that Foley probably did apply\nhis brakes just before the accident, but the brakes were not working properly. While the expert did\nnot testify about standards in the industry, he did testify that the Ryder Truck Company checks\ntruck brakes every 8,000 miles. One of the appellant\xe2\x80\x99s employees testified that the company policy\nwas to adjust the trailer brakes once a month, but the brakes on this trailer had not been adjusted\nfor three and one-half months, and the tractor brakes had not been opened for a complete inspection\nfor almost six months, although they were adjusted about 6 weeks before the accident. He further\ntestified that appellant conducted an internal inspection of the brakes every 50,000 miles as\nrecommended by the American Trucking Association and, in addition, the drivers conducted a daily\ninspection. There was no evidence that appellant had any knowledge that the brakes were faulty.\nAs Foley sped downhill at 70 miles per hour, he ran into the rear of the decedent\xe2\x80\x99s car and then\nstruck appellee\xe2\x80\x99s rig and the house.\nThe foregoing facts do not show that appellant, either by its own policies or through the actions\nof its agent Foley, intentionally acted in such a way that the natural and probable consequence was\nto damage appellee\xe2\x80\x99s property. Nor do the facts show that appellant knew that some act of negligence\nwas about to cause damage, but still continued to cause that damage. Accordingly, we reverse the\njudgment for punitive damages.\nWhen we reverse a judgment for punitive damages, we normally must also reverse the award for\ncompensatory damages because the issues are so interwoven that an error with respect to one requires\na retrial of the whole case. In this case, however, the parties have stipulated as to the amount of\ncompensatory damages, so we reverse on the punitive damages, but do not remand for new trial\xe2\x80\xa6.\nHays, Justice, dissenting:\nThe majority\xe2\x80\x99s opinion has examined the evidence supporting punitive damages more from the\nappellant\xe2\x80\x99s standpoint than the appellee\xe2\x80\x99s. When viewed most favorably to the appellee, and with its\nfullest probative force, I believe there was substantial evidence to support the trial court\xe2\x80\x99s refusal to\ngrant a motion for a directed verdict.\nWe no longer require actual malice as an essential constituent of punitive damages. It is enough\nif the defendant acted recklessly or wantonly, or with a conscious indifference to the safety and\nwelfare of others using the highways. In Dalrymple v. Fields, 633 S.W.2d 362 (Ark 1982), we said:\n\n\x0cCASES & CRITIQUE\n\n245\n\nBefore punitive damages may be allowed it must be shown that in the absence of\nproof of malice or willfulness there was a wanton and conscious indifference for\nthe rights and safety of others on the part of the tortfeasor.\nWhile excessive speed may, in many circumstances, be no more than ordinary negligence,\nactions are not to be viewed in a vacuum, and what may be no more than negligence in one setting\ncan readily be seen as wantonness or conscious indifference in another context. Thus driving 85\nm.p.h. on certain stretches of highway may be relatively safe, or it may be negligence, depending on\nthe traffic, weather, etc. But driving only 35 or 40 m.p.h. past a school at dismissal hour or close to\na playground crowded with children with an evident indifference to the known tendencies of\nchildren could meet even restrictive concepts of wantonness. In Airco, Inc. v. Simmons First National\nBank, 638 S.W.2d 660 (Ark. 1982), we upheld a monumental award of punitive damages, not on\nproof that Airco had any intent to injure, but because the injury was the natural and probable\nconsequence of Airco\xe2\x80\x99s conduct. It seems a fair analogy to me to say that when one knowingly drives\nan overloaded 18-wheeler, with defective brakes, on the highway at speeds of 70 m.p.h. by some\naccounts, oblivious of warning signals and without slowing down and with no apparent effort at\nstopping, approaching congestion on the highway, a collision is the natural and probable\nconsequence of such conduct. At least, reasonable minds could differ on the issue of conscious\nindifference and that is enough.\nIn sum, the proof was that Robert Foley was several hours late leaving Batesville for Little Rock. His\ntruck, an 18-wheeler, was loaded beyond the lawful limit. His truck, by whatever standard one chooses,\nwas equipped with brakes that were not functioning properly. For some miles prior to the point of\nimpact Mr. Foley drove so fast and so close to preceding vehicles that two of those motorists were\nalarmed by it and described his conduct at trial as speeding and \xe2\x80\x9ctailgating.\xe2\x80\x9d Rounding a curve bearing\ninto a straight, level stretch of highway some 900 feet from the appellee\xe2\x80\x99s house-moving rig, Mr. Foley\nproceeded at a high rate of speed (70 m.p.h. by one account) and with no discernable attempt to reduce\nhis speed (some witnesses testified that his speed actually increased as he neared the impact point),\npast one vehicle with a warning light flashing, to strike the Staggs-McGee vehicle, knocking it a\nconsiderable distance in the air, and resulting in the deaths of the two occupants, before striking\nanother vehicle and the house. Photographs of the scene attest to extraordinary force of the impact.\nThere was testimony that one of the brake shoes on the truck was not even touching the brake\ndrum, rendering it useless as a braking device. There was testimony that none of the four rear brakes\nmet Department of Transportation specifications. There was other material evidence from which an\ninference could be drawn that the brakes on the truck were seriously deficient and that fact was\nknown by Foley and was in derogation of the policies of National By-Products, Inc. Lastly, there was\nproof from which the jury could quite properly have inferred that National By-Products, Inc., in\naddition to neglecting the safe operation of the truck involved, engaged in practices which promoted\nthe overloading of its trucks beyond the legal limit, by routinely paying weight fines rather than\ndemanding compliance by its drivers.\nThe proof, I believe, was such that a jury had a right under the law to exemplify the conduct of\nboth defendants by assessing punitive damages. The judgment should be affirmed.\n1.\n\nQUESTIONS\nWhat\xe2\x80\x99s Tort Law Up To? What are punitive damages supposed to accomplish? Do they\nserve the goals of tort law? Shouldn\xe2\x80\x99t we accomplish punishment through criminal law?\n\n2.\n\nIntentional Torts: National By-Products shows us that punitive damages are sometimes,\nbut not always, available in negligence claims. But what about intentional torts? Will a\nplaintiff suing for battery or false imprisonment always be entitled to punitive damages?\n\n3.\n\nYou Be the Judge: In Justice Dudley\xe2\x80\x99s view, no reasonable jury could conclude that Foley\nacted with conscious indifference to the imminent risk of injury to others posed by his\ndriving. Do you agree?\n\n\x0c246\n\nTORT LAW\n\nMATHIAS v. ACCOR ECONOMY LODGING, INC.\nUnited States Court of Appeals for the Seventh Circuit (2003)\nPosner, Judge:\n\n\xc3\xa3\n\nThe plaintiffs brought this diversity suit governed by Illinois law\nagainst affiliated entities (which the parties treat as a single entity, as shall\nwe) that own and operate the \xe2\x80\x9cMotel 6\xe2\x80\x9d chain of hotels and motels. One\nof these hotels (now a \xe2\x80\x9cRed Roof Inn,\xe2\x80\x9d though still owned by the\ndefendant) is in downtown Chicago. The plaintiffs, a brother and sister,\nwere guests there and were bitten by bedbugs\xe2\x80\xa6. The plaintiffs claim that\nin allowing guests to be attacked by bedbugs in a motel that charges\nupwards of $100 a day for a room and would not like to be mistaken for\na flophouse, the defendant was guilty of \xe2\x80\x9cwillful and wanton conduct\xe2\x80\x9d\nand thus under Illinois law is liable for punitive as well as compensatory\ndamages. The jury agreed and awarded each plaintiff $186,000 in punitive\ndamages though only $5,000 in compensatory damages. The defendant\nappeals, complaining primarily about the punitive-damages award\xe2\x80\xa6.\nThe defendant argues that at worst it is guilty of simple negligence, and if this is right the\nplaintiffs were not entitled by Illinois law to any award of punitive damages. It also complains that\nthe award was excessive\xe2\x80\x94indeed that any award in excess of $20,000 to each plaintiff would deprive\nthe defendant of its property without due process of law. The first complaint has no possible merit,\nas the evidence of gross negligence, indeed of recklessness in the strong sense of an unjustifiable\nfailure to avoid a known risk, was amply shown. In 1998, EcoLab, the extermination service that the\nmotel used, discovered bedbugs in several rooms in the motel and recommended that it be hired to\nspray every room, for which it would charge the motel only $500; the motel refused. The next year,\nbedbugs were again discovered in a room but EcoLab was asked to spray just that room. The motel\ntried to negotiate a building sweep by EcoLab free of charge, but, not surprisingly, the negotiation\nfailed. By the spring of 2000, the motel\xe2\x80\x99s manager started noticing that there were refunds being\ngiven by my desk clerks and reports coming back from the guests that there were ticks in the rooms\nand bugs in the rooms that were biting. She looked in some of the rooms and discovered bedbugs.\nThe defendant asks us to disregard her testimony as that of a disgruntled ex-employee, but of course\nher credibility was for the jury, not the defendant, to determine.\nFurther incidents of guests being bitten by insects and demanding and receiving refunds led the\nmanager to recommend to her superior in the company that the motel be closed while every room\nwas sprayed, but this was refused. This superior, a district manager, was a management-level\nemployee of the defendant, and his knowledge of the risk and failure to take effective steps either to\neliminate it or to warn the motel\xe2\x80\x99s guests are imputed to his employer for purposes of determining\nwhether the employer should be liable for punitive damages. The employer\xe2\x80\x99s liability for\ncompensatory damages is of course automatic on the basis of the principle of respondeat superior,\nsince the district manager was acting within the scope of his employment.\nThe infestation continued and began to reach farcical proportions, as when a guest, after\ncomplaining of having been bitten repeatedly by insects while asleep in his room in the hotel, was\nmoved to another room only to discover insects there; and within 18 minutes of being moved to a\nthird room he discovered insects in that room as well and had to be moved still again. (Odd that at\nthat point he didn\xe2\x80\x99t flee the motel.) By July, the motel\xe2\x80\x99s management was acknowledging to EcoLab\nthat there was a \xe2\x80\x9cmajor problem with bed bugs\xe2\x80\x9d and that all that was being done about it was\n\xe2\x80\x9cchasing them from room to room.\xe2\x80\x9d Desk 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, though in fact ticks are more\ndangerous than bedbugs because they spread Lyme Disease and Rocky Mountain Spotted Fever.\nRooms that the motel had placed on \xe2\x80\x9cDo not rent, bugs in room\xe2\x80\x9d status nevertheless were rented.\nIt was in November that the plaintiffs checked into the motel. They were given Room 504, even\nthough the motel had classified the room as \xe2\x80\x9cDO NOT RENT UNTIL TREATED,\xe2\x80\x9d and it had not been\n\xc3\xa3\n\nCurtis Gregory Perry, Motel 6 (CC BY-NC-SA 2.0).\n\n\x0cCASES & CRITIQUE\n\n247\n\ntreated. Indeed, that night 190 of the hotel\xe2\x80\x99s 191 rooms were occupied, even though a number of them\nhad been placed on the same don\xe2\x80\x99t-rent status as Room 504. One of the defendant\xe2\x80\x99s motions in limine\nthat the judge denied was to exclude evidence concerning all other rooms\xe2\x80\x94a good example of the\nfrivolous character of the motions and of the defendant\xe2\x80\x99s pertinacious defense of them on appeal.\nAlthough bedbug bites are not as serious as the bites of some other insects, they are painful and\nunsightly. Motel 6 could not have rented any rooms at the prices it charged had it informed guests\nthat the risk of being bitten by bedbugs was appreciable. Its failure either to warn guests or to take\neffective measures to eliminate the bedbugs amounted to fraud and probably to battery as\nwell\xe2\x80\xa6. There was, in short, sufficient evidence 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 punitive damages in this case.\nBut in what amount? In arguing that $20,000 was the maximum amount of punitive damages\nthat a jury could constitutionally have awarded each plaintiff, the defendant points to the U.S.\nSupreme Court\xe2\x80\x99s recent statement that \xe2\x80\x9cfew awards of punitive damages exceeding a single-digit\nratio between punitive and compensatory damages, to a significant degree, will satisfy due\nprocess.\xe2\x80\x9d State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408 (2003). The Court went\non to suggest that \xe2\x80\x9cfour times the amount of compensatory damages might be close to the line of\nconstitutional impropriety.\xe2\x80\x9d Hence the defendant\xe2\x80\x99s proposed ceiling in this case of $20,000, four\ntimes the compensatory damages awarded to each plaintiff. The ratio of punitive to compensatory\ndamages determined by the jury was, in contrast, 37.2 to 1.\nThe Supreme Court did not, however, lay down a 4-to-1 or single-digit-ratio rule\xe2\x80\x94it said merely\nthat \xe2\x80\x9cthere is a presumption against an award that has a 145-to-1 ratio\xe2\x80\x9d\xe2\x80\x94and it would be\nunreasonable to do so. We must consider why punitive damages are awarded and why the Court has\ndecided that due process requires that such awards be limited. The second question is easier to\nanswer than the first. The term \xe2\x80\x9cpunitive damages\xe2\x80\x9d implies punishment, and a standard principle of\npenal theory is that \xe2\x80\x9cthe punishment should fit the crime\xe2\x80\x9d in the sense of being proportional to the\nwrongfulness of the defendant\xe2\x80\x99s action, though the principle is modified when the probability of\ndetection is very low (a familiar example is the heavy fines for littering) or the crime is potentially\nlucrative (as in the case of trafficking in illegal drugs). Hence, with these qualifications, which in fact\nwill figure in our analysis of this case, punitive damages should be proportional to the wrongfulness\nof the defendant\xe2\x80\x99s actions.\nAnother penal precept is that a defendant should have reasonable notice of the sanction for\nunlawful acts, so that he can make a rational determination of how to act; and so there have to be\nreasonably clear standards for determining the amount of punitive damages for particular wrongs.\nAnd a third precept, the core of the Aristotelian notion of corrective justice, and more broadly\nof the principle of the rule of law, is that sanctions should be based on the wrong done rather than\non the status of the defendant; a person is punished for what he does, not for who he is, even if the\nwho is a huge corporation\xe2\x80\xa6\n[O]ne function of punitive-damages awards is to relieve the pressures on an overloaded system\nof criminal justice by providing a civil alternative to criminal prosecution of minor crimes. An\nexample is deliberately spitting in a person\xe2\x80\x99s face, a criminal assault but because minor readily\ndeterrable by the levying of what amounts to a civil fine through a suit for damages for the tort of\nbattery. Compensatory damages would not do the trick in such a case, and this for three reasons:\nbecause they are difficult to determine in the case of acts that inflict largely dignitary harms; because\nin the spitting case they would be too slight to give the victim an incentive to sue, and he might\ndecide instead to respond with violence\xe2\x80\x94and an age-old purpose of the law of torts is to provide a\nsubstitute for violent retaliation against wrongful injury\xe2\x80\x94and because to limit the plaintiff to\ncompensatory damages would enable the defendant to commit the offensive act with impunity\nprovided that he was willing to pay, and again there would be a danger that his act would incite a\nbreach of the peace by his victim.\nWhen punitive damages are sought for billion-dollar oil spills and other huge economic injuries,\nthe considerations that we have just canvassed fade. As the Court emphasized in Campbell, the fact\nthat the plaintiffs in that case had been awarded very substantial compensatory damages\xe2\x80\x94$1 million\nfor a dispute over insurance coverage\xe2\x80\x94greatly reduced the need for giving them a huge award of\npunitive damages ($145 million) as well in order to provide an effective remedy. Our case is closer to\n\n\x0c248\n\nTORT LAW\n\nthe spitting case. The defendant\xe2\x80\x99s behavior was outrageous but the compensable harm done was slight\nand at the same time difficult to quantify because a large element of it was emotional. And the\ndefendant may well have profited from its misconduct because by concealing the infestation it was\nable to keep renting rooms. Refunds were frequent but may have cost less than the cost of closing the\nhotel for a thorough fumigation. The hotel\xe2\x80\x99s attempt to pass off the bedbugs as ticks, which some\nguests might ignorantly have thought less unhealthful, may have postponed the instituting of\nlitigation to rectify the hotel\xe2\x80\x99s misconduct. The award of punitive damages in this case thus serves the\nadditional purpose of limiting the defendant\xe2\x80\x99s ability to profit from its fraud by escaping detection\nand (private) prosecution. If a tortfeasor is \xe2\x80\x9ccaught\xe2\x80\x9d only half the time he commits torts, then when\nhe is caught he should be punished twice 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 \xc3\x97 [$5,000 + $20,000]), the\nplaintiffs might well have had difficulty financing this lawsuit. It is here that the defendant\xe2\x80\x99s\naggregate net worth of $1.6 billion becomes relevant. A defendant\xe2\x80\x99s wealth is not a sufficient basis\nfor awarding punitive damages. That would be discriminatory and would violate the rule of law, as\nwe explained earlier, by making punishment depend on status rather than conduct. Where wealth\nin the sense of resources enters is in enabling the defendant to mount an extremely aggressive\ndefense against suits such as this and by doing so to make litigating against it very costly, which in\nturn may make it difficult for the plaintiffs to find a lawyer willing to handle their case, involving as\nit does only modest stakes, for the usual 33-40 percent contingent fee.\nIn other words, the defendant is investing in developing a reputation intended to deter plaintiffs.\nIt is difficult otherwise to explain the great stubbornness with which it has defended this case,\nmaking a host of frivolous evidentiary arguments despite the very modest stakes even when the\npunitive damages awarded by the jury are included\xe2\x80\xa6.\nAll things considered, we cannot say that the award of punitive damages was excessive, albeit the\nprecise number chosen by the jury 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 hotel. But as there are no punitivedamages guidelines, corresponding to the federal and state sentencing guidelines, it is inevitable that\nthe specific amount of punitive damages awarded whether by a judge or by a jury will be arbitrary.\n(Which is perhaps why the plaintiffs\xe2\x80\x99 lawyer did not suggest a number to the jury.) The judicial\nfunction is to police a range, not a point.\nBut it would have been helpful had the parties presented evidence concerning the regulatory or\ncriminal penalties to which the defendant exposed itself by deliberately exposing its customers to a\nsubstantial risk of being bitten by bedbugs. That is an inquiry recommended by the Supreme Court.\nBut we do not think its omission invalidates the award. We can take judicial notice that deliberate\nexposure of hotel guests to the health risks created by insect infestations exposes the hotel\xe2\x80\x99s owner\nto sanctions under Illinois and Chicago law that in the aggregate are comparable in severity to the\npunitive damage award in this case.\n\xe2\x80\x9cA person who causes bodily harm to or endangers the bodily safety of an individual by any\nmeans, commits reckless conduct if he performs recklessly the acts which cause the harm or\nendanger safety, whether they otherwise are lawful or unlawful.\xe2\x80\x9d 720 Ill. Comp. Stat. Ann. 5/12-5(a).\nThis is a misdemeanor, punishable by up to a year\xe2\x80\x99s imprisonment or a fine of $2,500, or both\xe2\x80\xa6. Of\ncourse a corporation cannot be sent to prison, and $2,500 is obviously much less than the $186,000\nawarded to each plaintiff in this case as punitive damages. But this is just the beginning. Other guests\nof the hotel were endangered besides these two plaintiffs. And, what is much more important, a\nChicago hotel that permits unsanitary conditions to exist is subject to revocation of its license,\nwithout which it cannot operate. We are sure that the defendant would prefer to pay the punitive\ndamages assessed in this case than to lose its license.\n1.\n\nQUESTIONS\nDon\xe2\x80\x99t Let the Bedbugs Bite: Judge Posner observes that Motel 6\xe2\x80\x99s failure to eliminate\nthe bedbugs or warn guests about them probably constituted battery. Do you agree? Did\nMotel 6 intend a harmful or offensive contact? How might the guests establish intent for\na battery claim?\n\n\x0cCASES & CRITIQUE\n\n249\n\n2.\n\nLitigation Incentives: Judge Posner thinks punitive damages are warranted to address\ntwo special types of wrongful conduct. What are they? Which is at issue here? Is it fair\nto say that, in essence, both types seek to remedy the problem of \xe2\x80\x9cunder-litigation\xe2\x80\x9d?\n\n3.\n\nDoes the Punishment Fit the Crime? Judge Posner mentions the Supreme Court\xe2\x80\x99s State\nFarm decision, which explored constitutional limits on punitive damages. The Court\nheld that due process requires punitive damages to be reasonable and proportionate\xe2\x80\x94a\nstandard that involves courts scrutinizing the reprehensibility of the defendant\xe2\x80\x99s\nconduct and comparing the punitive damages to both the plaintiff\xe2\x80\x99s compensatory\ndamages and civil penalties in other comparable cases. Although the Court said that\nawards \xe2\x80\x9cexceeding a single-digit ratio between punitive and compensatory damages\xe2\x80\x9d\nwould be constitutionally dubious, it stressed that higher ratios might be warranted \xe2\x80\x9cif\na particularly egregious act has resulted in only a small amount of economic damages.\xe2\x80\x9d\nHow does this tie into Judge Posner\xe2\x80\x99s justification for punitive damages? And what\nhappens if multiple plaintiffs bring separate claims based on the same wrong? Imagine,\nfor example, that other Motel 6 guests sue after getting bitten. Should courts prevent\nthem from continually recovering punitive damages from Motel 6 based on the same\nconduct? Finally, what can legislators do if they want to rein in punitive awards?\n\nC. Vicarious & Joint Liability\nTABER v. MAINE\nUnited States Court of Appeals for the Second Circuit (1995)\nCalabresi, Judge:\n\n\xc3\xa3\n\nTwenty-six years ago, in Ira S. Bushey & Sons, Inc. v.\nUnited States, 398 F.2d 167 (2d Cir. 1968), this court held\nthat the United States Government was vicariously liable\nfor damage to a drydock caused by a drunken sailor who\nwas returning to ship from a night\xe2\x80\x99s liberty. In his\ncelebrated opinion, Judge Henry Friendly described the\nbasis of respondeat superior as the \xe2\x80\x9cdeeply rooted\nsentiment that a business enterprise cannot justly\ndisclaim responsibility for accidents which may fairly be\nsaid to be characteristic of its activities.\xe2\x80\x9d Even though the sailor had become drunk while on liberty\nand far off base, we noted that drinking on leave was so common a part of naval life that the sailor\xe2\x80\x99s\ndrunken return to ship could fairly be deemed to be characteristic of the military enterprise and,\nhence, that the government should be held liable for the damage that he caused.\nIn Bushey, we applied admiralty law. Today\xe2\x80\x94in a case that again involves a seaman who had too\nmuch to drink\xe2\x80\x94we must apply the law of Guam. This, in turn, points us to California decisions for\nguidance. As it happens, California has taken the lead in developing the modern law of respondeat\nsuperior even before Bushey. And, so, rounding out the circle, we now reach the same conclusion as\ndid Judge Friendly, twenty-six years ago\xe2\x80\xa6.\nOn the morning of April 13, 1985, Robert S. Maine, a Navy serviceman on active duty at the U.S.\nNaval Ship Repair Facility on the island of Guam, went on liberty after having completed a grueling\n24 hour duty shift. While on liberty he was free to leave the base as he pleased and travel up to 50\nmiles away. He could also be recalled for duty at any time.\nMaine decided to have a good time. By noon, he was relaxing at an on-base beach party and\ndrinking beer with Navy friends. Later that afternoon, he purchased two six-packs of beer at the base\nPX with his Navy comrade, Karin Conville, and returned with her to his barracks to drink several\nmore cans. At dinnertime, Maine accompanied friends to the enlisted men\xe2\x80\x99s club, where he\nconsumed two cocktails with his meal. After dinner, he attended a barracks party in the room of a\nsuperior officer, with several other superior officers present. There, Maine drank three or four more\n\xc3\xa3\n\nMichal Porebiak, Drunken Sailors (CC BY-NC-SA 2.0).\n\n\x0c250\n\nTORT LAW\n\nbeers and\xe2\x80\x94when he left to return to his own barracks at about 11:00 p.m.\xe2\x80\x94Conville and another\nNavy comrade named Jean Buquet noticed that he seemed to be drunk. At around 11:30 p.m., Maine\nhad difficulty sleeping and decided to drive off base to get something to eat. Feeling tired, he aborted\nhis snack mission and tried to return to base. On the way back, he caused the accident that injured\nScott A. Taber.\nTaber was an enlisted Seabee\xe2\x80\x94a construction worker in the United States Navy\xe2\x80\x94and was\nstationed at Camp Covington, Guam. At 6:00 p.m. on Friday, April 12th, he too went on liberty.\nAccordingly, he was free to go off base at any time, to travel anywhere within 50 miles of his base\nand, unless he was recalled for duty, to do as he pleased until his liberty ended at 6:00 a.m. on the\nfollowing Monday.\nAround 2:00 p.m. on Saturday April 13, Taber\xe2\x80\x99s civilian friend, Estelita Stills, met Taber at his\nbase in her car. They planned to spend the weekend together at her house, which was located off the\nbase. Before going there, however, the two drove to her cousins\xe2\x80\x99 home for dinner at the nearby U.S.\nNaval Station. There, Taber enjoyed a meal and, as a friendly gesture in return, helped fix the\ncousins\xe2\x80\x99 car. Shortly before midnight, Stills and Taber left for Stills\xe2\x80\x99s house and their weekend of rest\nand recreation. As fate would have it, they never got there. While they were driving on the public\nroadway toward Stills\xe2\x80\x99s house, Maine crashed into them, injuring Taber severely.\nTwo years later, Taber started this action for damages under the Federal Tort Claims Act\n(\xe2\x80\x9cFTCA\xe2\x80\x9d)\xe2\x80\xa6. Naming both Maine and the United States Government as defendants, Taber\ncomplained that he was injured as a result of Maine\xe2\x80\x99s negligent driving and that, because Maine was\nacting within the scope of his Naval employment when he caused the accident, the government was\nliable on a theory of respondeat superior\xe2\x80\xa6. [The district court] granted summary judgment to the\ngovernment because \xe2\x80\x9cMaine\xe2\x80\x99s drunk driving incident on April 13, 1985, was not in the line of duty\nand therefore the United States is not liable under the doctrine of respondeat superior.\xe2\x80\x9d\xe2\x80\xa6\nThe action proceeded against Maine, however. After a bench trial in which Maine appeared pro\nse, the district court found Maine liable for negligence and assessed Taber\xe2\x80\x99s damages at $300,000. A\nfinal judgment was entered and Taber appealed\xe2\x80\xa6.\nThe FTCA allows civil actions against the government based on the negligent acts or omissions\nof its employees, including those of members of the Armed Services who are acting \xe2\x80\x9cin the line of\nduty.\xe2\x80\x9d The courts have uniformly equated the FTCA\xe2\x80\x99s \xe2\x80\x9cline of duty\xe2\x80\x9d language with the phrase \xe2\x80\x9cscope\nof employment,\xe2\x80\x9d as that concept is defined by the respondeat superior law of the jurisdiction in\nwhich the accident occurred. Because the accident in this case happened in Guam, we must follow\nGuam\xe2\x80\x99s law of respondeat superior\xe2\x80\xa6.\nWhere the law of Guam is unclear, the Ninth Circuit, serving as Guam\xe2\x80\x99s highest appellate court,\nhas instructed courts to look to California law for guidance\xe2\x80\xa6. It seems clear to us that California\nlaw (and by implication the law of Guam) would hold the government vicariously liable for Maine\xe2\x80\x99s\nactions. California was one of the first states in the nation to adopt an expansive reading of\nthe respondeat superior doctrine [that is now] evident in numerous California cases\xe2\x80\xa6. For example,\nin Rodgers v. Kemper Construction Co., 124 Cal. Rptr. 143 (Cal. Ct. App. 1975), a subcontractor was\nheld vicariously liable for an assault committed by two of its employees who had lounged around\ndrinking for several hours in what was, ironically, called the \xe2\x80\x9cdry house\xe2\x80\x9d (a rest area/locker room\nlocated on the job site). On a Friday night after their work shift had ended, the employees, though\nfree to go home, stayed in the dry house and got drunk. Later they went outside and got in a fight\nwith the plaintiffs. In finding respondeat superior liability, the court stated that \xe2\x80\x9cthe inquiry should\nbe whether the risk was one that may be fairly regarded as typical of or broadly incidental to the\nenterprise undertaken by the employer.\xe2\x80\x9d The court further noted that under California law,\nwhere social or recreational pursuits on the employer\xe2\x80\x99s premises after hours are\nendorsed by the express or implied permission of the employer and are\n\xe2\x80\x98conceivably\xe2\x80\x99 of some benefit to the employer or, even in the absence of proof of\nbenefit, if such activities have become \xe2\x80\x98a customary incident of the employment\nrelationship,\xe2\x80\x99 an employee engaged in such pursuits after hours is still acting\nwithin the scope of his employment.\n\n\x0cCASES & CRITIQUE\n\n251\n\nIn Rodgers, the subcontractor \xe2\x80\x9ccustomarily permitted employees to remain on the premises in\nor about the dry house long after their work shift had ended\xe2\x80\x9d and it was also \xe2\x80\x9ccustomary, particularly\non Friday evenings, for employees to sit around the dry house after their work shift and talk and\ndrink beer, often joined by their supervisors.\xe2\x80\x9d Because it \xe2\x80\x9cwas neither unusual nor unreasonable\xe2\x80\x9d\nfor the assailants to be on the job site drinking before the assault, and because such drinking in the\ndry house \xe2\x80\x9cwas a customary incident of the employment relationship,\xe2\x80\x9d the court ruled that their\nrelated tortious actions fell within the scope of their employment. Not surprisingly, the court\nin Rodgers relied heavily on our decision in Bushey.\nSimilarly, in Childers v. Shasta Livestock Auction Yard, Inc., 235 Cal. Rptr. 641 (Cal. Ct. App.\n1987), Shasta\xe2\x80\x99s foreman gave Childers and Abbott (both Shasta employees) the keys to his office at\nthe end of the day and told them to go have a beer. The two employees were later joined by a\ncustomer, and the three of them drank both beer and hard liquor for several hours, getting quite\ndrunk. At around 10:00 p.m., Abbott suggested to Childers that they drive off to feed Abbott\xe2\x80\x99s\nhorses. Abbott drove her truck off the road, killing herself and injuring Childers. In addressing\nChilders\xe2\x80\x99s claim against Shasta, the court made clear that the fact that Childers\xe2\x80\x99s injuries occurred\naway from the work site did not bar the employer\xe2\x80\x99s vicarious liability for Abbott\xe2\x80\x99s drunk driving.\nThe court said:\nrespondeat superior liability is properly applied where an employee undertakes\nactivities within his or her scope of employment that cause the employee to\nbecome an instrumentality of danger to others even where the danger may\nmanifest itself at times and locations remote from the ordinary workplace\xe2\x80\xa6.\nThe district court below tried to distinguish these authorities on the ground that the drinking\nin Rodgers and Childers took place at the work site while Maine\xe2\x80\x99s supposedly did not. We disagree.\nThe drinking in both Rodgers and Childers occurred at worksite rest areas (the \xe2\x80\x9cdry house\xe2\x80\x9d and the\nbusiness office, respectively)\xe2\x80\x94not on the assembly line. Similarly, although Maine did not drink\nwhile working at the Naval Ship Repair Facility, he drank at an on-base beach party, at the enlisted\nmen\xe2\x80\x99s club, and in the barracks\xe2\x80\x94all of which were located on his base. These places were as much\non-site rest areas as the ones involved in both Rodgers and Childers.\nThe government understandably seeks to rely on an older conception of respondeat\nsuperior. This view of the doctrine required a close link between the acts of the \xe2\x80\x9cagent\xe2\x80\x9d and \xe2\x80\x9cprofit\xe2\x80\x9d\naccruing to the master before vicarious liability attaches to the latter. But today this position is in\nhasty retreat, if not rout. Thus Rodgers and Childers held that the employer-benefit requirement is\nmet whenever broad potential effects on morale and customer relations exist, or where the employer\nhas implicitly permitted or endorsed the recreational practices that led to the harm\xe2\x80\xa6.\nOf course drinking by servicemembers can be viewed as important to military morale, just as\ndrinking was apparently instrumental to good employee morale and customer relations\nin Rodgers and Childers. Hence, \xe2\x80\x9cemployer-benefit\xe2\x80\x9d can be adduced in all these cases. But in the end,\n\xe2\x80\x9cemployer-benefit\xe2\x80\x9d is significant only because it is one way of showing that the harm that drinking\ncauses can properly be considered a cost of the employer\xe2\x80\x99s enterprise.\nCalifornia courts have said that the doctrine of respondeat superior is concerned with the\nallocation of the cost of industrial injury. The issue is simply whether the employee\xe2\x80\x99s conduct is not\nso unusual or startling that it would seem unfair to include the loss resulting from it among other\ncosts of the employer\xe2\x80\x99s business. Thus, our focus must be on the relationship between the\nservicemember\xe2\x80\x99s behavior and the costs of the military enterprise.\nHere, it is undisputed that drinking on base during off-duty hours was a commonplace, if not an\nofficially condoned activity. It certainly was a customary incident of Maine\xe2\x80\x99s employment\nrelationship with the Navy, as that element is described in Rodgers. And in the context of the military\nmission, an occasional drunken servicemember who leaves government premises and causes\ndamage is a completely foreseeable event, in the sense that it is a reasonably obvious risk of the\ngeneral enterprise. As such, we do not think that it would be either \xe2\x80\x9cunfair\xe2\x80\x9d or the slightest bit\nunreasonable to impose that cost on the government. To the contrary, given the pervasive control\nthat the military exercises over its personnel while they are on a base, it is totally in keeping with the\ndoctrine of respondeat superior to allocate the costs of base operations to the government.\n\n\x0c252\n\nTORT LAW\n\nSee William M. Landes & Richard A. Posner, The Positive Economic Theory of Tort Law, 15 Ga. L.\nRev. 851 (1981) (discussing respondeat superior as an incentive for employers to exert their control\nover employees to induce careful conduct). And this is so quite apart from whether or not the\nmilitary benefits from the boost in morale achieved through fairly lenient on-base drinking policies.1\nAs the leading Torts treatise has put it, \xe2\x80\x9cthe integrating principle\xe2\x80\x9d of respondeat superior is \xe2\x80\x9cthat\nthe employer should be liable for those faults that may be fairly regarded as risks of his business,\nwhether they are committed in furthering it or not.\xe2\x80\x9d Fowler V. Harper, Fleming James, Jr. & Oscar\nS. Gray, The Law of Torts \xc2\xa7 26.8 (1986). Judge Friendly made the same point most elegantly\nin Bushey. \xe2\x80\x9cThe proclivity of seamen to find solicitude by copious resort to the bottle,\xe2\x80\x9d he wrote,\n\xe2\x80\x9chas been noted in opinions too numerous to warrant citation. Once all this is granted, it is\nimmaterial that the coastguardsman\xe2\x80\x99s precise action was not to be foreseen.\xe2\x80\x9d After all, the\ngovernment \xe2\x80\x9ccannot justly disclaim responsibility for accidents which may fairly be said to be\ncharacteristic of its activities.\xe2\x80\x9d We believe the law of Guam reaches the same conclusion.\nAccordingly, we hold that the government is vicariously liable for Maine\xe2\x80\x99s conduct\xe2\x80\xa6.\n\xc3\xa3\n\n1.\n\nQUESTIONS\nLet the Master Answer: Did anyone in the Navy pressure Maine to get drunk and go\nhunting for snacks while on liberty? Did his actions benefit the Navy? Why is the Navy\non the hook for his actions?\n\n2.\n\nSemper Fortis\xe2\x80\xa6 et Ebrius! Judge Calabresi ties an employer\xe2\x80\x99s liability to conduct that\xe2\x80\x99s\n\xe2\x80\x9ccharacteristic\xe2\x80\x9d of the employer\xe2\x80\x99s enterprise. Is getting drunk characteristic of the Navy\xe2\x80\x99s\nactivities? Would the Navy be liable if Maine had been boozing in a bar in Hag\xc3\xa5t\xc3\xb1a?\n\n3.\n\nRole Reversal: Imagine that Taber had instead driven carelessly and crashed into Maine.\nWould the Navy be liable under a theory of respondeat superior? How about if Maine\nhad punched Taber in a bar fight?\n\n1\nWe make no pronouncement on drunkenness in general. Our point here is simply that drinking on base during offduty hours was a customary incident of Maine\xe2\x80\x99s employment relationship with the Navy. This \xe2\x80\x9con-base\xe2\x80\x9d drinking included\nan on-base beach party, cocktails at the enlisted personnel club, and drinking at a barracks party in the room of a superior\nofficer, all on the day of the off-base accident. It is these on-base activities that bring this case within the ambit\nof Rodgers and Childers, and therefore impose respondeat superior liability on the government. We find instructive the\nexample offered by Judge Friendly, albeit in an admiralty context in Bushey, indicating that employer liability would not be\nimposed for an off-base tort resulting from drinking at an off-base bar. Like Judge Friendly, we would not deem such an\nactivity incident to the employment relationship.\n\xc3\xa3\nWela Quan, Respondeat Superior, NY Bar Picture Book (CC BY-NC-ND 4.0).\n\n\x0cCASES & CRITIQUE\n\n253\n\nRAVO v. ROGATNICK\nCourt of Appeals of the State of New York (1987)\nAlexander, Judge:\nIn this medical malpractice action, defendant, Dr.\nIrwin L. Harris, appeals from an order of the Appellate\nDivision unanimously affirming an amended judgment of\nSupreme Court, entered on a jury verdict, finding him\njointly and severally liable with Dr. Sol Rogatnick for\ninjuries negligently inflicted upon plaintiff, Josephine\nRavo, and resulting in brain damage that has rendered her\nseverely and permanently [disabled]. The issue presented\nis whether joint and several liability was properly imposed\nupon defendant under the circumstances of this case\nwhere, notwithstanding that the defendants neither acted in concert nor concurrently, a single\nindivisible injury\xe2\x80\x94brain damage\xe2\x80\x94was negligently inflicted. For the reasons that follow, we affirm.\nUncontroverted expert medical evidence established that plaintiff, Josephine Ravo, who at the\ntime of trial was 14 years of age, was severely and permanently [disabled] as a result of brain damage\nshe suffered at birth. The evidence demonstrated that the child was born an unusually large baby\nwhose mother suffered from gestational diabetes which contributed to difficulties during delivery.\nThe evidence further established that Dr. Rogatnick, the obstetrician who had charge of the ante\npartum care of Josephine\xe2\x80\x99s mother and who delivered Josephine, failed to ascertain pertinent medical\ninformation about the mother, incorrectly estimated the size of the infant, and employed improper\nsurgical procedures during the delivery. It was shown that Dr. Harris, the pediatrician under whose\ncare Josephine came following birth, misdiagnosed and improperly treated the infant\xe2\x80\x99s condition\nafter birth. Based upon this evidence, the jury concluded that Dr. Rogatnick committed eight separate\nacts of medical malpractice, and Dr. Harris committed three separate acts of medical malpractice.\nAlthough Dr. Rogatnick\xe2\x80\x99s negligence contributed to Josephine\xe2\x80\x99s brain damage, the medical\ntestimony demonstrated that Dr. Harris\xe2\x80\x99s negligence was also a substantial contributing cause of the\ninjury. No testimony was adduced, however, from which the jury could delineate which aspects of\nthe injury were caused by the respective negligence of the individual doctors. Indeed, plaintiff\xe2\x80\x99s\nexpert, Dr. Charash\xe2\x80\xa6concluded that neither he nor anybody else could say with certainty which of\nthe factors caused the brain damage. Similarly, Dr. Perrotta, testifying on behalf of plaintiff, opined\nthat she could not tell whether [Dr. Harris\xe2\x80\x99s carelessness] contributed \xe2\x80\x9c10 percent, 20 percent, or\nanything like that\xe2\x80\x9d to the injury. Nor, as the Appellate Division found, did Dr. Harris adduce any\nevidence that could support a jury finding that he caused an identifiable percentage of the infant\nplaintiff\xe2\x80\x99s brain damage. Indeed, Dr. Harris\xe2\x80\x99s entire defense appears to have been that he was not\nresponsible for the plaintiff\xe2\x80\x99s injury to any degree.\nThe trial court instructed the jury [on comparative fault and joint and severable liability.]\xe2\x80\xa6\n[T]he jury returned a verdict for plaintiff in the total amount of $2,750,000 attributing 80% of the\n\xe2\x80\x9cfault\xe2\x80\x9d to Dr. Rogatnick and 20% of the \xe2\x80\x9cfault\xe2\x80\x9d to Dr. Harris.\nIn a post-verdict motion, Dr. Harris sought an order directing entry of judgment limiting the\nplaintiff\xe2\x80\x99s recovery against him to $450,000 (20% of the $2,250,000 base recovery\xe2\x80\x94the court having\nsetoff $500,000 received by plaintiff in settlement of claims against other defendants) based upon\nhis contention that his liability was not joint and several, but rather was independent and successive.\nThis motion was denied. [The Appellate Division affirmed.]\nWhen two or more tort-feasors act concurrently or in concert to produce a single injury, they\nmay be held jointly and severally liable. This is so because such concerted wrongdoers are considered\n\xe2\x80\x9cjoint tort-feasors\xe2\x80\x9d and in legal contemplation, there is a joint enterprise and a mutual agency, such\nthat the act of one is the act of all and liability for all that is done is visited upon each. On the other\nhand, where multiple tort-feasors neither act in concert nor contribute concurrently to the same\nwrong, they are not joint tort-feasors; rather, their wrongs are independent and successive. Under\nsuccessive and independent liability, of course, the initial tort-feasor may well be liable to the\nplaintiff for the entire damage proximately resulting from his own wrongful acts, including\n\n\x0c254\n\nTORT LAW\n\naggravation of injuries by a successive tort-feasor. The successive tort-feasor, however, is liable only\nfor the separate injury or the aggravation his conduct has caused.\nIt is sometimes the case that tort-feasors who neither act in concert nor concurrently may\nnevertheless be considered jointly and severally liable. This may occur in the instance of certain\ninjuries which, because of their nature, are incapable of any reasonable or practicable division or\nallocation among multiple tort-feasors. We had occasion to consider such a circumstance in Slater\nv. Mersereau, 64 N.Y. 138 (N.Y. 1876), where premises belonging to the plaintiff were damaged by\nrainwater as a result of the negligent workmanship by a general contractor and a subcontractor. We\nheld that where two parties by their separate and independent acts of negligence, cause a single,\ninseparable injury, each party is responsible for the entire injury:\nAlthough they acted independently of each other, they did act at the same time in\ncausing the damages, each contributing towards it, and although the act of each,\nalone and of itself, might not have caused the entire injury, under the\ncircumstances presented, there is no good reason why each should not be liable\nfor the damages caused by the different acts of all. The water with which each of\nthe parties were instrumental in injuring the plaintiffs was one mass and\ninseparable, and no distinction can be made between the different sources from\nwhence it flowed, so that it can be claimed that each caused a separate and distinct\ninjury for which each one is separately responsible. The contractor and\nsubcontractors were separately negligent, and although such negligence was not\nconcurrent, yet the negligence of both these parties contributed to produce the\ndamages caused at one and the same time.\nOur affirmance in Hawkes v. Goll, 24 N.E.2d 484 (N.Y. 1939), demonstrates that simultaneous\nconduct is not necessary to a finding of joint and several liability when there is an indivisible injury.\nIn that case, the decedent was struck by the vehicle driven by the defendant Farrell and was thrown\nacross the roadway, where very shortly thereafter he was again struck, this time by the vehicle driven\nby the defendant Goll, and dragged some 40 to 50 feet along the highway. He was taken to the\nhospital where he expired within the hour. The Appellate Division stated:\nAs the result of his injuries the plaintiff\xe2\x80\x99s intestate died within an hour. There\ncould be no evidence upon which the jury could base a finding of the nature of the\ninjuries inflicted by the first car as distinguished from those inflicted by the second\ncar. The case was submitted to the jury upon the theory that if both defendants\nwere negligent they were jointly and severally liable. While the wrongful acts of\nthe two defendants were not precisely concurrent in point of time, the defendants\nmay nevertheless be joint tort feasors where, as here, their several acts of neglect\nconcurred in producing the injury\xe2\x80\xa6.\nSimilarly, here the jury was unable to determine from the evidence adduced at trial the degree to\nwhich the defendants\xe2\x80\x99 separate acts of negligence contributed to the brain damage sustained by\nJosephine at birth. Certainly, a subsequent tort-feasor is not to be held jointly and severally liable for\nthe acts of the initial tort-feasor with whom he is not acting in concert in every case where it is\ndifficult, because of the nature of the injury, to separate the harm done by each tort-feasor from the\nothers. Here, however, the evidence established that plaintiff\xe2\x80\x99s brain damage was a single indivisible\ninjury, and defendant failed to submit any evidence upon which the jury could base an\napportionment of damage.\nHarris argues, however, that since the jury ascribed only 20% of the fault to him, this was in reality\nan apportionment of damage, demonstrating that the injury was divisible. This argument must fail.\nClearly, the court\xe2\x80\x99s instruction, and the interrogatory submitted in amplification thereof, called upon\nthe jury to determine the respective responsibility in negligence of the defendants so as to establish a\nbasis for an apportionment between them, by way of contribution, for the total damages awarded to\nplaintiff. In that respect, the jury\xe2\x80\x99s apportionment of fault is unrelated to the nature of defendants\xe2\x80\x99\nliability (i.e., whether it was joint and several or independent and successive)\xe2\x80\xa6.\n\n\x0cCASES & CRITIQUE\n\n255\n\nHere, the jury determined that the defendants breached duties owed to Josephine Ravo, and that\nthese breaches contributed to her brain injury. The jury\xe2\x80\x99s apportionment of fault, however, does not\nalter the joint and several liability of defendants for the single indivisible injury. Rather, that aspect\nof the jury\xe2\x80\x99s determination of culpability merely defines the amount of contribution defendants may\nclaim from each other, and does not impinge upon plaintiff\xe2\x80\x99s right to collect the entire judgment\naward from either defendant\xe2\x80\xa6.\nThe right to seek equitable apportionment based on relative culpability is not one intended for\nthe benefit of the injured claimant. It is a right affecting the distributive responsibilities of tortfeasors inter sese. It is elementary that injured claimants may still choose which joint tort-feasors to\ninclude as defendants in an action and, regardless of the concurrent negligence of others, recover\nthe whole of their damages from any of the particular tort-feasors sued. This being so, in light of the\nevidence establishing the indivisibility of the brain injury and the contributing negligence of Dr.\nHarris, and of the manner in which the case was tried and submitted to the jury, we conclude that\njoint and several liability was properly imposed\xe2\x80\xa6. Order affirmed, with costs.\n1.\n\n2.\n\nQUESTIONS\nHunt Revisited: When the jury attributed 80% of the fault to Dr. Rogatnick and 20% of\nthe fault to Dr. Harris, was it effectively dividing their relative causal contributions to\nRavo\xe2\x80\x99s injury? Under the Restatement (Third) of Torts: Apportionment of Liability \xc2\xa7 8,\nwhat role does causation play in apportionment for purposes of comparative fault? Is\ncausation the whole ballgame?\nCausation Conundrums: What\xe2\x80\x99s the difference between a single indivisible injury and\nan independent and successive wrong? What liability consequences flow from each?\nRESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY \xc2\xa7 23\nContribution (2000)\n\n(a) When two or more persons are or may be liable\nfor the same harm and one of them discharges\nthe liability of another by\xe2\x80\xa6discharge of\njudgment, the person discharging the liability is\nentitled to recover contribution from the other,\nunless the other previously had a valid\nsettlement and release from the plaintiff.\n(b) A person entitled to recover contribution may\nrecover no more than the amount paid to the\nplaintiff in excess of the person\xe2\x80\x99s comparative\nshare of responsibility.\n\xc3\xa3\n\n1.\n\n2.\n\n\xc3\xa3\n\nQUESTIONS\nApportionment and Contribution: The jury found that Dr. Harris was 20% at fault for\nRavo\xe2\x80\x99s injury. May Ravo recover the entire $2.25 million judgment from Dr. Harris? Is\nthere anything he can do to limit his financial exposure under \xc2\xa7 23 of the Restatement\n(Third) of Torts? What if Dr. Rogatnick is insolvent or has fled to an unknown location?\nAre the underlying rules here fair to defendants?\nPosecai Revisited: Should the jury in Posecai have been allowed to assign some\npercentage of fault to the mugger? Does your answer depend on whether the mugger\ncan be identified and made a party to Shirley Posecai\xe2\x80\x99s lawsuit? When the plaintiff suffers\na single indivisible injury caused by multiple tortfeasors, how should the rules of\ncomparative fault, apportionment, and contribution deal with so-called \xe2\x80\x9cphantom\ntortfeasors\xe2\x80\x9d to whom defendants attempt to shift some blame?\n\nAlex Griffioen, Pointing the Finger (CC BY 2.0).\n\n\x0c256\n\nTORT LAW\n\nCHAPTER\n\n7:\n\nINFLICTION OF EMOTIONAL DISTRESS\n\nA. Intentional Infliction of Emotional Distress\nDICKENS v. PURYEAR\nSupreme Court of North Carolina (1981)\nExum, Justice:\n\n\xc3\xa3\n\nPlaintiff\xe2\x80\x99s complaint is cast as a claim for intentional infliction of\nmental distress. It was filed more than one year but less than three years\nafter the incidents complained of occurred\xe2\x80\xa6. Defendants\xe2\x80\x99 motions for\nsummary judgment were allowed on the ground that plaintiff\xe2\x80\x99s claim\nwas for assault and battery; therefore it was barred by the one-year\nstatute of limitations applicable to assault and battery\xe2\x80\xa6. We hold\nthat\xe2\x80\xa6plaintiff\xe2\x80\x99s claim is not altogether barred by the one-year statute\nbecause plaintiff\xe2\x80\x99s factual showing indicates plaintiff may be able to\nprove a claim for intentional infliction of mental distress\xe2\x80\x94a claim\nwhich is governed by the three-year statute of limitations\xe2\x80\xa6.\nFor a time preceding the incidents in question plaintiff Dickens, a\nthirty-one year old man, shared sex, alcohol and marijuana with\ndefendants\xe2\x80\x99 daughter, a seventeen year old high school student. On 2\nApril 1975 defendants, husband and wife, lured plaintiff into rural Johnston County, North Carolina.\nUpon plaintiff\xe2\x80\x99s arrival defendant Earl Puryear, after identifying himself, called out to defendant Ann\nPuryear who emerged from beside a nearby building and, crying, stated that she \xe2\x80\x9cdidn\xe2\x80\x99t want to see\nthat SOB.\xe2\x80\x9d Ann Puryear then left the scene. Thereafter Earl Puryear pointed a pistol between\nplaintiff\xe2\x80\x99s eyes and shouted \xe2\x80\x9cYa\xe2\x80\x99ll come on out.\xe2\x80\x9d Four men wearing ski masks and armed with\nnightsticks then approached from behind plaintiff and beat him into semi-consciousness. They\nhandcuffed plaintiff to a piece of farm machinery and resumed striking him with nightsticks.\nDefendant Earl Puryear, while brandishing a knife and cutting plaintiff\xe2\x80\x99s hair, threatened plaintiff\nwith castration. During four or five interruptions of the beatings defendant Earl Puryear and the\nothers, within plaintiff\xe2\x80\x99s hearing, discussed and took votes on whether plaintiff should be killed or\ncastrated. Finally, after some two hours and the conclusion of a final conference, the beatings ceased.\nDefendant Earl Puryear told plaintiff to go home, pull his telephone off the wall, pack his clothes, and\nleave the state of North Carolina; otherwise he would be killed. Plaintiff was then set free.\nPlaintiff filed his complaint on 31 March 1978. It alleges that defendants on the occasion just\ndescribed intentionally inflicted mental distress upon him. He further alleges that as a result of\ndefendants\xe2\x80\x99 acts plaintiff has suffered \xe2\x80\x9csevere and permanent mental and emotional distress, and\nphysical injury to his nerves and nervous system.\xe2\x80\x9d He alleges that he is unable to sleep, afraid to go out\nin the dark, afraid to meet strangers, afraid he may be killed, suffering from chronic diarrhea and a\ngum disorder, unable effectively to perform his job, and that he has lost $1,000 per month income\xe2\x80\xa6.\nDefendants contend, and the Court of Appeals agreed, that this is an action grounded in assault\nand battery. Although plaintiff pleads the tort of intentional infliction of mental distress, the Court\nof Appeals concluded that the complaint\xe2\x80\x99s factual allegations and the factual showing at the hearing\non summary judgment support only a claim for assault and battery. The claim was, therefore, barred\nby the one-year period of limitations applicable to assault and battery. Plaintiff, on the other hand,\nargues that the factual showing on the motion supports a claim for intentional infliction of mental\ndistress\xe2\x80\x94a claim which is governed by the three-year period of limitations.1 At least, plaintiff argues,\n\n\xc3\xa3\n\nJoaquin Villaverde, Injury (CC BY-NC-SA 2.0).\nAlthough defendants argue that even the tort of intentional infliction of mental distress is governed by the one-year\nstatute of limitations, we are satisfied that it is not. The one-year statute, G.S. 1-54(3), applies to \xe2\x80\x9clibel, slander, assault, battery,\nor false imprisonment.\xe2\x80\x9d As we go to some length in the opinion to demonstrate, the tort of intentional infliction of mental\ndistress is none of these things\xe2\x80\xa6. No statute of limitations addresses the tort of intentional infliction of mental distress by\nname. It must, therefore, be governed by the more general three-year statute of limitations, G.S. 1-52(5), which applies to\n\xe2\x80\x9cany other injury to the person or rights of another, not arising on contract and not hereafter enumerated.\xe2\x80\x9d\xe2\x80\xa6\n1\n\n\x0cCASES & CRITIQUE\n\n257\n\nhis factual showing is such that it cannot be said as a matter of law that he will be unable to prove\nsuch a claim at trial\xe2\x80\xa6.\nThe interest protected by the action for battery is freedom from intentional and unpermitted\ncontact with one\xe2\x80\x99s person; the interest protected by the action for assault is freedom from\napprehension of a harmful or offensive contact with one\xe2\x80\x99s person. The apprehension created must\nbe one of an immediate harmful or offensive contact, as distinguished from contact in the future\xe2\x80\xa6.\nA mere threat, unaccompanied by an offer or attempt to show violence, is not an assault\xe2\x80\xa6. This\nis true even though the mental discomfort caused by a threat of serious future harm on the part of\none who has the apparent intention and ability to carry out his threat may be far more emotionally\ndisturbing than many of the attempts to inflict minor bodily contacts which are actionable as assaults.\nAny remedy for words which are abusive or insulting, or which create emotional distress by threats\nfor the future, is to be found [through other torts.]\xe2\x80\xa6 Threats for the future are simply not present\nbreaches of the peace, and so never have fallen within the narrow boundaries of assault. Thus threats\nfor the future are actionable, if at all, not as assaults but as intentional inflictions of mental distress.\nThe tort of intentional infliction of mental distress is recognized in North Carolina. Liability\narises under this tort when a defendant\xe2\x80\x99s conduct exceeds all bounds usually tolerated by decent\nsociety and the conduct causes mental distress of a very serious kind. In Stanback v. Stanback, 254\nS.E.2d 611 (N.C. 1979), plaintiff alleged that defendant breached a separation agreement between\nthe parties. She further alleged\xe2\x80\xa6that defendant\xe2\x80\x99s conduct in breaching the contract was \xe2\x80\x9cwilful,\nmalicious, calculated, deliberate and purposeful\xe2\x80\x9d and that she has suffered great mental anguish and\nanxiety as a result of defendant\xe2\x80\x99s conduct in breaching the agreement and that defendant acted\nrecklessly and irresponsibly and with full knowledge of the consequences which would result\xe2\x80\xa6.\n[T]hese allegations were sufficient to state a claim for what has become essentially the tort of\nintentional infliction of serious emotional distress\xe2\x80\xa6.\nThe tort alluded to in Stanback is defined in the Restatement \xc2\xa7 46 as follows:\nOne who by extreme and outrageous conduct intentionally or recklessly causes\nsevere emotional distress to another is subject to liability for such emotional\ndistress, and if bodily harm to the other results from it, for such bodily harm\xe2\x80\xa6.\nThere is, however, troublesome dictum in Stanback that plaintiff, to recover for this tort, \xe2\x80\x9cmust\nshow some physical injury resulting from the emotional disturbance caused by defendant\xe2\x80\x99s alleged\nconduct\xe2\x80\x9d and that the harm she suffered was a \xe2\x80\x9cforeseeable result.\xe2\x80\x9d Plaintiff in Stanback did not\nallege that she had suffered any physical injury as a result of defendant\xe2\x80\x99s conduct. We noted\nin Stanback, however, that \xe2\x80\x9cphysical injury\xe2\x80\x9d had been given a broad interpretation in some of our\nearlier cases, e.g., Kimberly v. Howland, 55 S.E. 778 (N.C. 1906), where the Court said,\nThe nerves are as much a part of the physical system as the limbs, and in some\npersons are very delicately adjusted, and when \xe2\x80\x9cout of tune\xe2\x80\x9d cause excruciating\nagony. We think the general principles of the law of torts support a right of action\nfor physical injuries resulting from negligence, whether wilful or otherwise, none\nthe less strongly because the physical injury consists of a wrecked nervous system\ninstead of lacerated limbs.\nWe held in Stanback that plaintiff\xe2\x80\x99s \xe2\x80\x9callegation that she suffered great mental anguish and\nanxiety is sufficient to permit her to go to trial upon the question of whether the great mental anguish\nand anxiety (which she alleges) has caused physical injury.\xe2\x80\x9d We held, further, that plaintiff\xe2\x80\x99s\nallegation that defendant acted with full knowledge of the consequences of his actions sufficiently\nindicated that the harm she suffered was a foreseeable result of his conduct\xe2\x80\xa6. [W]e are satisfied that\nthe dictum in Stanback was not necessary to the holding and in some respects actually conflicts with\nthe holding. We now disapprove it.\nIf \xe2\x80\x9cphysical injury\xe2\x80\x9d means something more than emotional distress or damage to the nervous\nsystem, it is simply not an element of the tort of intentional infliction of mental distress\xe2\x80\xa6. In Wilson\nv. Wilkins, 25 S.W.2d 428 (Ark. 1930), defendants came to the home of the plaintiff at night and\naccused him of stealing hogs. They told him that if he did not leave their community within 10 days\nthey \xe2\x80\x9cwould put a rope around his neck.\xe2\x80\x9d Defendants\xe2\x80\x99 threats caused the plaintiff to remove his\n\n\x0c258\n\nTORT LAW\n\nfamily from the area. Plaintiff testified that he was afraid they would kill him if he did not leave and\nthat he suffered great mental agony and humiliation because he had been accused of something of\nwhich he was not guilty. In sustaining a jury verdict in favor of plaintiff, the Arkansas Supreme\nCourt rejected defendants\xe2\x80\x99 contention that plaintiff was required to show some physical injury\nbefore he could recover. The Court said:\nThe defendants rely upon the rule that in actions for negligence there can be no\nmental suffering where there has been no physical injury. The rule is well settled\nin this state, but it has no application to willful and wanton wrongs and those\ncommitted with the intention of causing mental distress and injured feelings.\nMental suffering forms the proper element of damages in actions for willful and\nwanton wrongs and those committed with the intention of causing mental\ndistress.\nSimilarly, the question of foreseeability does not arise in the tort of intentional infliction of\nmental distress. This tort imports an act which is done with the intention of causing emotional\ndistress or with reckless indifference to the likelihood that emotional distress may result. A\ndefendant is liable for this tort when he desires to inflict severe emotional distress or knows that\nsuch distress is certain, or substantially certain, to result from his conduct or where he acts\nrecklessly in deliberate disregard of a high degree of probability that the emotional distress will\nfollow and the mental distress does in fact result. The authorities seem to agree that if the tort is\nwilful and not merely negligent, the wrong-doer is liable for such physical injuries as may\nproximately result, whether he could have foreseen them or not\xe2\x80\xa6.\nStanback, in effect, was the first formal recognition by this Court of the relatively recent tort of\nintentional infliction of mental distress. This tort, under the authorities already cited, consists of:\n(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe\nemotional distress to another. The tort may also exist where defendant\xe2\x80\x99s actions indicate a reckless\nindifference to the likelihood that they will cause severe emotional distress. Recovery may be had\nfor the emotional distress so caused and for any other bodily harm which proximately results from\nthe distress itself\xe2\x80\xa6.\nThe question [raised by defendants\xe2\x80\x99 motion for summary judgment], then, is whether the\nevidentiary showing demonstrates as a matter of law that plaintiff\xe2\x80\x99s only claim, if any, is for assault\nand battery. If plaintiff, as a matter of law, has no claim for intentional infliction of mental distress\nbut has a claim, if at all, only for assault and battery, then plaintiff cannot surmount the affirmative\ndefense of the one-year statute of limitations and defendants are entitled to summary judgment\xe2\x80\xa6.\nAlthough plaintiff labels his claim one for intentional infliction of mental distress, \xe2\x80\xa6the nature\nof the action is not determined by what either party calls it. The nature of the action is determined\nby the issues arising on the pleading and by the relief sought, and by the facts which, at trial, are\nproved or which, on motion for summary judgment, are forecast by the evidentiary showing.\nHere much of the factual showing at the hearing related to assaults and batteries committed by\ndefendants against plaintiff. The physical beatings and the cutting of plaintiff\xe2\x80\x99s hair constituted\nbatteries. The threats of castration and death, being threats which created apprehension of\nimmediate harmful or offensive contact, were assaults. Plaintiff\xe2\x80\x99s recovery for injuries, mental or\nphysical, caused by these actions would be barred by the one-year statute of limitations.\nThe evidentiary showing on the summary judgment motion does, however, indicate that\ndefendant Earl Puryear threatened plaintiff with death in the future unless plaintiff went home,\npulled his telephone off the wall, packed his clothes, and left the state. The Court of Appeals\ncharacterized this threat as being \xe2\x80\x9can immediate threat of harmful and offensive contact. It was a\npresent threat of harm to plaintiff.\xe2\x80\x9d The Court of Appeals thus concluded that this threat was also\nan assault barred by the one-year statute of limitations. We disagree with the Court of Appeals\xe2\x80\x99\ncharacterization of this threat. The threat was not one of imminent, or immediate, harm. It was a\nthreat for the future apparently intended to and which allegedly did inflict serious mental distress;\ntherefore it is actionable, if at all, as an intentional infliction of mental distress.\nThe threat, of course, cannot be considered separately from the entire episode of which it was\nonly a part. The assaults and batteries, construing the record in the light most favorable to the\n\n\x0cCASES & CRITIQUE\n\n259\n\nplaintiff, were apparently designed to give added impetus to the ultimate conditional threat of future\nharm. Although plaintiff\xe2\x80\x99s recovery for injury, mental or physical, directly caused by the assaults and\nbatteries is barred by the statute of limitations, these assaults and batteries may be considered in\ndetermining the outrageous character of the ultimate threat and the extent of plaintiff\xe2\x80\x99s mental or\nemotional distress caused by it.2\nHaving concluded, therefore, that the factual showing on the motions for summary judgment was\nsufficient to indicate that plaintiff may be able to prove at trial a claim for intentional infliction of mental\ndistress, we hold that summary judgment for defendants based upon the one-year statute of limitations\nwas error and we remand the matter for further proceedings against defendant Earl Puryear\xe2\x80\xa6.\n1.\n\nQUESTIONS\nSpousal Support: The court focuses on whether Earl Puryear may be liable for\nintentional infliction of emotional distress. But could his wife, Ann Puryear, be liable\nunder any theory? And could she also be liable for assault and battery if those claims\nweren\xe2\x80\x99t barred by the statute of limitations?\n\n2.\n\nSlicing and Dicing: Take a close look at footnote 2. What exactly will it require of the\njury on remand? Do you think such delicate parsing is possible?\n\n3.\n\nTime Is of the Essence: Is there a reason to give plaintiffs an extra two years to bring\nclaims for intentional infliction of emotional distress? Or is it merely legislative oversight?\n\nThe following case involves racism and includes redacted racist slurs.\nLITTLEFIELD v. McGUFFEY\nUnited States Court of Appeals for the Seventh Circuit (1992)\nWood, Judge:\nSusanne Littlefield sued Malcolm McGuffey, also\nknown as Wally Mack among other persona, claiming he\ndenied her rental housing because her boyfriend, the father\nof her daughter, was not of the same race as she. She sought\nrelief under the Equal Opportunity in Housing provision\nof the Civil Rights Act of 1866 and the Fair Housing Act as\namended by the Fair Housing Amendments Act of 1988.\nIn addition she claimed he committed numerous,\noutrageous acts of harassment\xe2\x80\xa6[and] raised a claim for\nintentional infliction of emotional distress under Illinois\ncommon law. The jury found Mr. McGuffey liable and\nawarded $50,000 in compensatory damages and $100,000 in punitive damages.\nMcGuffey thereupon moved for a judgment notwithstanding the verdict and, alternatively, for a\nnew trial. [The district court] denied both motions[,] entered judgment on the verdict, awarded\nattorney\xe2\x80\x99s fees\xe2\x80\xa6, and imposed Rule\xe2\x80\x9311 sanctions on Mr. McGuffey\xe2\x80\x99s attorneys for offering a motion\nwhich was based on \xe2\x80\x9cinadequate legal inquiry and which was being used to harass, delay or increase\nthe costs of litigation.\xe2\x80\x9d Defendant McGuffey appeals\xe2\x80\xa6. For the reasons stated below we affirm.\nOn September 14, 1988, Ms. Littlefield, who was then 23 years old, met Malcolm McGuffey at\none of his apartment buildings. After viewing the advertised apartment she completed a rental\napplication form and gave him a $280 check as a security deposit, leaving the name of the payee\n2\nWe note in this regard plaintiff\xe2\x80\x99s statement in his deposition that \xe2\x80\x9cit is not entirely the future threat which caused me\nall of my emotional upset and disturbance that I have complained about. It was the ordeal from beginning to end.\xe2\x80\x9d If plaintiff\nis able to prove a claim for intentional infliction of mental distress it will then be the difficult, but necessary, task of the trier\nof fact to ascertain the damages flowing from the conditional threat of future harm. Although the assaults and batteries serve\nto color and give impetus to the future threat and its impact on plaintiff\xe2\x80\x99s emotional condition, plaintiff may not recover\ndamages flowing directly from the assaults and batteries themselves.\n\n\x0c260\n\nTORT LAW\n\nblank at McGuffey\xe2\x80\x99s request. Later, McGuffey filled in the name of the payee with the fictitious\n\xe2\x80\x9cSanta Maria Realty,\xe2\x80\x9d claiming at trial to have chosen that name because it had been close to\nColumbus Day. He endorsed the check first as \xe2\x80\x9cSanta Maria Realty\xe2\x80\x9d then as \xe2\x80\x9cOsvaldo Kennardo,\xe2\x80\x9d\nanother persona of his. At their meeting McGuffey and Ms. Littlefield had agreed she, her younger\nsister Sandra, and her daughter Shaunte would occupy the two-bedroom apartment and that\nMcGuffey would purchase and install a carpet with Ms. Littlefield paying the cost of installation.\nMcGuffey gave Ms. Littlefield a key to the apartment, and between then and September 27 she,\nmembers of her family, and friends cleaned and painted the apartment and moved various\nbelongings into it.\nOn September 27, 1988, Bruce Collins, accompanied by Shaunte, the two-year old daughter of\nCollins and Littlefield, took a check to McGuffey to pay for the carpet installation. When McGuffey\nrealized Mr. Collins was not the same race as Ms. Littlefield but was the father of her daughter, he\nbecame quite agitated and exclaimed \xe2\x80\x9cthe old man\xe2\x80\x9d had rented the apartment to someone else. At\ntrial McGuffey admitted he sometimes referred to himself as \xe2\x80\x9cthe old man.\xe2\x80\x9d\nAfter Collins left, McGuffey called Ms. Littlefield at work and told her she could not rent the\napartment because \xe2\x80\x9cthe boss\xe2\x80\x9d (another of McGuffey\xe2\x80\x99s persona) had rented it to someone else. He\nalso told her he had changed the locks and had put her belongings out on the porch. This was but\nthe first of many phone calls McGuffey made to Ms. Littlefield. That evening he called her at home,\nidentified himself as Walley Luther, and, mimicking a stereotypical black manner of speaking, told\nher he wanted to move in with her and \xe2\x80\x9csix black guys, quit work and take welfare and drugs with\nher, and swap wives with Bruce.\xe2\x80\x9d He called her at least two more times that night and several other\ntimes that week with similar, degrading messages.\nMs. Littlefield was not the only recipient of McGuffey\xe2\x80\x99s harassing, insulting and racist phone\ncalls. Her sister, Kathleen Gutierrez, was called many times over the next week or so. McGuffey told\nher he was a member of the Ku Klux Klan and regularly asked how her sister, Susanne, \xe2\x80\x9ccould have\ngone to bed with a n****r and how she could have a n****r baby.\xe2\x80\x9d On one occasion McGuffey\nattempted to lure Ms. Gutierrez outside on the pretext that she had to move her car because the\nchurch lot where it was parked was being caulked.\nThe phone calls did not suffice. In early November McGuffey tracked down Ms. Littlefield\xe2\x80\x99s new\nresidence and left a note, written on a napkin taped to her door, threatening the life of Bruce Collins\nand repeating racist slurs. When she arrived home that evening, Ms. Littlefield found her sister,\nSandra, hiding behind the door, clutching a broom.\nMs. Littlefield and her witnesses\xe2\x80\xa6testified to all these events and more. Additionally, Ms.\nLittlefield testified to numerous episodes of severe emotional distress. She became hysterical upon\nreceiving McGuffey\xe2\x80\x99s call at work, went to the restroom, and cried; the rest of the day she suffered\nfrom stomach upset and diarrhea. She experienced numerous episodes of disquiet and fright, being\nparticularly fretful because she feared for her daughter\xe2\x80\x99s safety. Ms. Littlefield also testified that when\nshe came home at night with Shaunte, she would run from her car to her apartment, clutching her\ndaughter in one arm, with her keys in one hand and a can of mace in the other.\nMcGuffey denied Ms. Littlefield\xe2\x80\x99s allegations, claiming he had not refused her rental housing on\nthe basis of race and that he had not harassed her. He asserted, instead, he had learned from various\nbusinesses and prior landlords that she was a poor credit risk and had a history as an undesirable\ntenant. He presented no witnesses, however, that confirmed having given him the negative rentalhistory or credit information. On the other hand, Ms. Littlefield presented witnesses from credit\ndepartments of various businesses McGuffey claimed to have contacted. They generally testified the\ncredit information McGuffey claimed to have acquired would not be given out and that, anyway,\nMs. Littlefield\xe2\x80\x99s credit history was respectable. The testimony of Brice Fawcett, Ms. Littlefield\xe2\x80\x99s\nformer landlord, was notably damaging for the defendant. He contradicted everything McGuffey\nclaimed to have been told by him; he stated Ms. Littlefield had been a good tenant; and he testified\nMcGuffey did not interview him until October 1, four days after McGuffey evicted Ms. Littlefield.\nAs the district court observed, \xe2\x80\x9cMr. McGuffey\xe2\x80\x99s story therefore depended almost entirely on his own\ncredibility, and he was, to put it mildly, a witness with credibility problems.\xe2\x80\x9d\n\n\x0cCASES & CRITIQUE\n\n261\n\n\xe2\x80\xa6Mr. McGuffey raises [three] issues: [1] whether the district court erred in admitting or refusing\nto admit certain items of evidence\xe2\x80\xa6, [2] whether there was sufficient evidence to support the\ndamage awards, and [3] whether the award of attorney\xe2\x80\x99s fees was excessive\xe2\x80\xa6.\nAdmission of Evidence\nMcGuffey\xe2\x80\xa6asserts it was error for the district court to admit Ms. Littlefield\xe2\x80\x99s testimony about\nepisodes of fear and anxiety not accompanied by medically significant, physical manifestations. This\nclaim of error fails because in Illinois physical manifestation of emotional distress is not an element\nof the tort of intentional infliction of emotional distress.\nUnder Illinois common law the tort comprises three elements. First, the conduct involved must\nbe truly extreme and outrageous. Second, the actor must either intend that his conduct inflict severe\nemotional distress, or know that there is at least a high probability that his conduct will cause severe\nemotional distress. Third, the conduct must in fact cause severe emotional distress. These are the\nonly elements enunciated by the court. Medically significant, physical manifestation of emotional\ndistress in not among them\xe2\x80\xa6.\nJury Instructions\n\xe2\x80\xa6A court of review should proceed cautiously when asked to set aside a jury\xe2\x80\x99s verdict and order\na new trial, bound to consume substantial judicial resources, on the ground that the instructions\ncontained erroneous or confusing passages\xe2\x80\xa6. McGuffey finds fault with Plaintiff\xe2\x80\x99s Instruction No.\n21 regarding her state-law claim of intentional infliction of emotional distress. He raises numerous\nallegations, the essence of which is that there was insufficient evidence of past, present, or future\ndamages to justify giving the challenged instruction\xe2\x80\xa6. There is sufficient evidence in the record to\nsupport giving the challenged instruction. A perusal of the facts recited above shows Ms. Littlefield\npresented evidence of her having suffered severe emotional distress. Additionally, there was some\nevidence of that distress continuing through the time of trial. Thus, the district court was not without\njustification for giving the instruction with respect to past, present, and future damages\xe2\x80\xa6.\nSufficient Evidence\n\xe2\x80\xa6McGuffey\xe2\x80\x99s next two claims of error are that there is insufficient evidence to support the jury\xe2\x80\x99s\nverdict awarding, on the one hand, $50,000 in compensatory damages and, on the other, $100,000\nin punitive damages. A damage award will not be vacated for excessiveness unless it is monstrously\nexcessive or there is no rational connection between the evidence on damages and the verdict\xe2\x80\xa6.\nMcGuffey claims the compensatory-damage award must be reduced, if not reversed, because\nthe plaintiff \xe2\x80\x9cpresented no evidence of out-of-pocket loss\xe2\x80\x9d and no evidence of economic damage,\nbut only \xe2\x80\x9cintangible elements of emotional distress.\xe2\x80\x9d He further claims the amount of the award was\nthe result of the jury\xe2\x80\x99s being carried away by passion and prejudice, due in large part to Ms.\nLittlefield\xe2\x80\x99s testimony about her emotional feelings.\nBut it is precisely the testimony about her emotional feelings and response to his terror tactics\nwhich supports the award for the claims of intentional infliction of emotional distress and racial\ndiscrimination. For example, Ms. Littlefield testified that after Mr. McGuffey called her at work to\ntell her she could not move into the apartment, she became scared, went to the washroom, cried for\na half hour, and left work for the day without explaining to her boss why because she was too\nembarrassed. She also testified that in late October or early November 1988, after moving into an\napartment with her daughter and sister, a terrifying note was discovered taped to her door. The note\nread: \xe2\x80\x9cBy THE Time you read this message Kiss your N***r [sic] friend goodbye Bitch > he\xe2\x80\x99s dead!!!\xe2\x80\x9d\nPlaintiff\xe2\x80\x99s Exhibit A. Plaintiff\xe2\x80\x99s handwriting expert testified the note had been written by McGuffey,\nbut the defendant\xe2\x80\x99s expert was equivocal. All death threats are heinous and would support a finding\nof intentional infliction of emotional distress. This one all the more because it employs the most\nvenomous and loathsome of racist epithets.\nIn addition, Ms. Littlefield testified she purchased cleaning, repair, and painting supplies, that she,\nmembers of her family, and friends cleaned and painted the apartment she was never allowed to\noccupy, and that she moved numerous personal items into it. This testimony belies McGuffey\xe2\x80\x99s\nappellate argument that Ms. Littlefield suffered no out-of-pocket loss. Lastly, the jury\xe2\x80\x99s award is not\nout of line with other, similar awards\xe2\x80\xa6. We, therefore, affirm the jury\xe2\x80\x99s compensatory-damage award.\n\n\x0c262\n\nTORT LAW\n\nMcGuffey\xe2\x80\x99s other complaint is about the amount of the punitive-damage award\xe2\x80\xa6. [W]e, like\nthe district court, conclude there is sufficient evidence to support the jury\xe2\x80\x99s punitive-damage\naward\xe2\x80\xa6. Initially, McGuffey rejected Ms. Littlefield as a tenant because of the race of her boyfriend\nand their daughter. McGuffey\xe2\x80\x99s subsequent acts of harassment and intimidation were entirely\ngratuitous and did not begin until after his initial act of racial discrimination. These later acts, as\nJudge Williams noted, included the following: (a) he immediately removed her belongings from the\napartment, exposing them to theft and vandalism and her to public ridicule and humiliation; (b) he\nmade numerous, blatantly racist, harassing phone calls to Ms. Littlefield; (c) he made similar racist,\nharassing phone calls to members of Ms. Littlefield\xe2\x80\x99s family who did not live with her; (d) he went\nto her sister\xe2\x80\x99s home and physically intimidated her; and (e) there is, of course, the death threat to\nBruce Collins posted on Ms. Littlefield\xe2\x80\x99s door. Not only is the evidence sufficient to support the\naward of punitive damages, it also supports the award of compensatory damages for the federal and\nstate law claims. We, therefore, affirm the jury\xe2\x80\x99s punitive-damage award\xe2\x80\xa6.\nAttorney\xe2\x80\x99s Fees\nIn his final claim of error McGuffey asserts the fees awarded Ms. Littlefield\xe2\x80\x99s attorneys should\nbe reduced to reflect what he claims are the reasonable hours spent on the litigation\xe2\x80\xa6. A district\ncourt\xe2\x80\x99s rulings on attorney\xe2\x80\x99s fees will rarely be reversed on appeal, and then only for abuse of\ndiscretion\xe2\x80\xa6. McGuffey, nonetheless, asks us to reduce the fee awarded from approximately\n$140,000 to nearly $50,000 by scrutinizing and excising some 473 individual time-charges, the\nlargest of which is for 9.5 hours and the smallest of which is for 0.1 hours. This we shall not do\xe2\x80\xa6..\nMcGuffey also argues the amount of the fees awarded is disproportionately large compared to\nthe damages awarded: approximately $140,000 versus $150,000. The size of a damage award,\nhowever, is not the gauge of a plaintiff\xe2\x80\x99s victory. Rather, value is gauged more broadly\xe2\x80\xa6. Ms.\nLittlefield prevailed on her federal law claims, receiving both compensatory and punitive damages.\nThe latter certainly will punish McGuffey and, one hopes, deter him from further violations. The\naward is also likely to deter others. Therefore, we find the attorney\xe2\x80\x99s fees awarded are not\nunreasonable, and the award stands\xe2\x80\xa6.\n1.\n\nQUESTIONS\nProving Distress: What proof did Littlefield offer about her emotional distress? How\ndid McGuffey challenge her on this issue? In general, how should plaintiffs have to\nsubstantiate their distress? What would you expect or want to see as a judge or juror?\n\n2.\n\nExtreme and Outrageous: Would McGuffey\xe2\x80\x99s racist refusal to rent the apartment\xe2\x80\x94\nwithout his campaign of intimidation\xe2\x80\x94suffice on its own to establish liability for\nintentional infliction of emotional distress? What if his only act was to leave the racist\nand threatening napkin note on Littlefield\xe2\x80\x99s door?\n\n3.\n\nRacist Speech: Richard Delgado\xe2\x80\x99s powerful 1982 article, Words That Wound: A Tort\nAction for Racial Insults, Epithets, and Name-Calling, examines how law often fails to\nprotect people from racial insults. After documenting the severe and extensive harm that\nracism imposes on society, Delgado advocates for an independent tort to counter racial\nslurs. Do you think such a tort should exist? What counterarguments might you expect\nto this kind of proposal? Is a standalone tort necessary if victims of racist speech can\nbring claims for intentional infliction of emotional distress?\n\n\x0cCASES & CRITIQUE\n\n263\n\nThe following case discusses sexual assault.\nJONES v. CLINTON\nUnited States District Court for the Eastern District of Arkansas (1998)\nWebber Wright, Judge:\nThe plaintiff in this lawsuit, Paula Corbin Jones, seeks\ncivil damages from William Jefferson Clinton, President of\nthe United States, and Danny Ferguson, a former Arkansas\nState Police Officer, for alleged actions beginning with an\nincident in a hotel suite in Little Rock, Arkansas. This case\nwas previously before the Supreme Court of the United\nStates to resolve the issue of Presidential immunity but was\nremanded to this Court following the Supreme Court\xe2\x80\x99s\ndetermination that there is no constitutional impediment\nto allowing plaintiff\xe2\x80\x99s case to proceed while the President is\nin office\xe2\x80\xa6. The matter is now before the Court on motion of both the President and Ferguson for\nsummary judgment\xe2\x80\xa6. For the reasons that follow, the Court finds that the President\xe2\x80\x99s and\nFerguson\xe2\x80\x99s motions for summary judgment should both be and hereby are granted.\nThis lawsuit is based on an incident that is said to have taken place on the afternoon of May 8,\n1991, in a suite at the Excelsior Hotel in Little Rock, Arkansas. President Clinton was Governor of\nthe State of Arkansas at the time, and plaintiff was a State employee with the Arkansas Industrial\nDevelopment Commission (\xe2\x80\x9cAIDC\xe2\x80\x9d)\xe2\x80\xa6. Ferguson was an Arkansas State Police officer assigned to\nthe Governor\xe2\x80\x99s security detail.\nAccording to the record, then-Governor Clinton was at the Excelsior Hotel on the day in\nquestion delivering a speech at an official conference being sponsored by the AIDC. Plaintiff states\nthat she and another AIDC employee, Pamela Blackard, were working at a registration desk for the\nAIDC when a man approached the desk and informed her and Blackard that he was Trooper Danny\nFerguson, the Governor\xe2\x80\x99s bodyguard. She states that Ferguson made small talk with her and\nBlackard and that they asked him if he had a gun as he was in street clothes and they \xe2\x80\x9cwanted to\nknow.\xe2\x80\x9d Ferguson acknowledged that he did and, after being asked to show the gun to them, left the\nregistration desk to return to the Governor. The conversation between plaintiff, Blackard, and\nFerguson lasted approximately five minutes and consisted of light, friendly banter; there was\nnothing intimidating, threatening, or coercive about it.\nUpon leaving the registration desk, Ferguson apparently had a conversation with the Governor\nabout the possibility of meeting with plaintiff, during which Ferguson states the Governor remarked\nthat plaintiff had \xe2\x80\x9cthat come-hither look,\xe2\x80\x9d i.e. \xe2\x80\x9ca sort of sexually suggestive appearance from the look\nor dress.\xe2\x80\x9d1 He states that \xe2\x80\x9csome time later\xe2\x80\x9d the Governor asked him to \xe2\x80\x9cget him a room, that he was\nexpecting a call from the White House and had several phone calls that he needed to make,\xe2\x80\x9d and\nasked him to go to the car and get his briefcase containing the phone messages. Ferguson states that\nupon obtaining the room, the Governor told him that if plaintiff wanted to meet him, she could\n\xe2\x80\x9ccome up.\xe2\x80\x9d\nPlaintiff states that Ferguson later reappeared at the registration desk, delivered a piece of paper\nto her with a four-digit number written on it, and said that the Governor would like to meet with\nher in this suite number. She states that she, Blackard, and Ferguson talked about what the Governor\ncould want and that Ferguson stated, among other things, \xe2\x80\x9cWe do this all the time.\xe2\x80\x9d Thinking that\nit was an honor to be asked to meet the Governor and that it might lead to an enhanced employment\nopportunity, plaintiff states that she agreed to the meeting and that Ferguson escorted her to the\nfloor of the hotel upon which the Governor\xe2\x80\x99s suite was located.\n\n1\n\nFerguson states that plaintiff informed him that she would like to meet the Governor, remarking that she thought the\nGovernor \xe2\x80\x9cwas good-looking and had sexy hair,\xe2\x80\x9d while plaintiff states that Ferguson asked her if she would like to meet the\nGovernor and that she was \xe2\x80\x9cexcited\xe2\x80\x9d about the possibility.\n\n\x0c264\n\nTORT LAW\n\nPlaintiff states that upon arriving at the suite and announcing herself, the Governor shook her\nhand, invited her in, and closed the door. She states that a few minutes of small talk ensued, which\nincluded the Governor asking her about her job and him mentioning that Dave Harrington,\nplaintiff\xe2\x80\x99s ultimate superior within the AIDC and a Clinton appointee, was his \xe2\x80\x9cgood friend.\xe2\x80\x9d\nPlaintiff states that the Governor then \xe2\x80\x9cunexpectedly reached over to her, took her hand, and pulled\nher toward him, so that their bodies were close to each other.\xe2\x80\x9d She states she removed her hand from\nhis and retreated several feet, but that the Governor approached her again and, while saying, \xe2\x80\x9cI love\nthe way your hair flows down your back\xe2\x80\x9d and \xe2\x80\x9cI love your curves,\xe2\x80\x9d put his hand on her leg, started\nsliding it toward her pelvic area, and bent down to attempt to kiss her on the neck, all without her\nconsent. Plaintiff states that she exclaimed, \xe2\x80\x9cWhat are you doing?,\xe2\x80\x9d told the Governor that she was\n\xe2\x80\x9cnot that kind of girl,\xe2\x80\x9d and \xe2\x80\x9cescaped\xe2\x80\x9d from the Governor\xe2\x80\x99s reach \xe2\x80\x9cby walking away from him.\xe2\x80\x9d She\nstates she was extremely upset and confused and, not knowing what to do, attempted to distract the\nGovernor by chatting about his wife. Plaintiff states that she sat down at the end of the sofa nearest\nthe door, but that the Governor approached the sofa where she had taken a seat and, as he sat down,\n\xe2\x80\x9clowered his trousers and underwear, exposed his penis (which was erect) and told her to \xe2\x80\x98kiss it.\xe2\x80\x99\xe2\x80\x9d2\nShe states that she was \xe2\x80\x9chorrified\xe2\x80\x9d by this and that she \xe2\x80\x9cjumped up from the couch\xe2\x80\x9d and told the\nGovernor that she had to go, saying something to the effect that she had to get back to the\nregistration desk. Plaintiff states that the Governor, \xe2\x80\x9cwhile fondling his penis,\xe2\x80\x9d said, \xe2\x80\x9cWell, I don\xe2\x80\x99t\nwant to make you do anything you don\xe2\x80\x99t want to do,\xe2\x80\x9d and then pulled up his pants and said, \xe2\x80\x9cIf you\nget in trouble for leaving work, have Dave call me immediately and I\xe2\x80\x99ll take care of it.\xe2\x80\x9d She states\nthat as she left the room (the door of which was not locked), the Governor \xe2\x80\x9cdetained\xe2\x80\x9d her\nmomentarily, \xe2\x80\x9clooked sternly\xe2\x80\x9d at her, and said, \xe2\x80\x9cYou are smart. Let\xe2\x80\x99s keep this between ourselves.\xe2\x80\x9d\nPlaintiff states that the Governor\xe2\x80\x99s advances to her were unwelcome, that she never said or did\nanything to suggest to the Governor that she was willing to have sex with him, and that during the\ntime they were together in the hotel suite, she resisted his advances although she was \xe2\x80\x9cstunned by\nthem and intimidated by who he was.\xe2\x80\x9d She states that when the Governor referred to Dave\nHarrington, she \xe2\x80\x9cunderstood that he was telling her that he had control over Mr. Harrington and\nover her job, and that he was willing to use that power.\xe2\x80\x9d She states that from that point on, she was\n\xe2\x80\x9cvery fearful\xe2\x80\x9d that her refusal to submit to the Governor\xe2\x80\x99s advances could damage her career and\neven jeopardize her employment.\nPlaintiff states that when she left the hotel suite, she was in shock and upset but tried to maintain\nher composure. She states she saw Ferguson waiting outside the suite but that he did not escort her\nback to the registration desk and nothing was said between them. Ferguson states that five or ten\nminutes after plaintiff exited the suite he joined the Governor for their return to the Governor\xe2\x80\x99s\nMansion and that the Governor, who was working on some papers that he had spread out on the\ndesk, said, \xe2\x80\x9cShe came up here, and nothing happened.\xe2\x80\x9d\nPlaintiff states she returned to the registration desk and told Blackard some of what had\nhappened. Blackard states that plaintiff was shaking and embarrassed. Following the Conference,\nplaintiff states she went to the workplace of a friend, Debra Ballentine, and told her of the incident\nas well. Ballentine states that plaintiff was upset and crying. Later that same day, plaintiff states she\ntold her sister, Charlotte Corbin Brown, what had happened and, within the next two days, also told\nher other sister, Lydia Corbin Cathey, of the incident. Brown\xe2\x80\x99s observations of plaintiff\xe2\x80\x99s demeanor\napparently are not included in the record. Cathey, however, states that plaintiff was \xe2\x80\x9cbawling\xe2\x80\x9d and\n\xe2\x80\x9csqualling,\xe2\x80\x9d and that she appeared scared, embarrassed, and ashamed.\nBallentine states that she encouraged plaintiff to report the incident to her boss or to the police, but\nthat plaintiff declined, pointing out that her boss was friends with the Governor and that the police\nwere the ones who took her to the hotel suite. Ballentine further states that plaintiff stated she did not\nwant her fiance to know of the incident and that she \xe2\x80\x9cjust wanted this thing to go away.\xe2\x80\x9d Plaintiff States\nthat what the Governor and Ferguson had said and done made her \xe2\x80\x9cafraid\xe2\x80\x9d to file charges.\nPlaintiff continued to work at AIDC following the alleged incident in the hotel suite. One of her\nduties was to deliver documents to and from the Office of the Governor, as well as other offices\n2\nPlaintiff states in her amended complaint that the Governor \xe2\x80\x9casked\xe2\x80\x9d her to \xe2\x80\x9ckiss it\xe2\x80\x9d rather than telling her to do so. She\nstates in her deposition that the Governor\xe2\x80\x99s specific words to her were, \xe2\x80\x9cWould you kiss it for me?\xe2\x80\x9d\n\n\x0cCASES & CRITIQUE\n\n265\n\naround the Arkansas State Capitol. She states that in June 1991, while performing these duties for\nthe AIDC, she encountered Ferguson who told her that Mrs. Clinton was out of town often and that\nthe Governor wanted her phone number and wanted to see her. Plaintiff states she refused to provide\nher phone number to Ferguson. She states that Ferguson also asked her how her fiance, Steve, was\ndoing, even though she had never told Ferguson or the Governor his name, and that this\n\xe2\x80\x9cfrightened\xe2\x80\x9d her. Plaintiff states that she again encountered Ferguson following her return to work\nfrom maternity leave and that he said he had \xe2\x80\x9ctold Bill how good looking you are since you\xe2\x80\x99ve had\nthe baby.\xe2\x80\x9d She also states that she was \xe2\x80\x9caccosted\xe2\x80\x9d by the Governor in the Rotunda of the Arkansas\nState Capitol when he \xe2\x80\x9cdraped his arm over her, pulled her close to him and held her tightly to his\nbody,\xe2\x80\x9d and said to his bodyguard, \xe2\x80\x9cDon\xe2\x80\x99t we make a beautiful couple: Beauty and the Beast?\xe2\x80\x9d Plaintiff\nadditionally states that on an unspecified date, she was waiting in the Governor\xe2\x80\x99s outer office on a\ndelivery run when the Governor entered the office, patted her on the shoulder, and in a \xe2\x80\x9cfriendly\nfashion\xe2\x80\x9d said, \xe2\x80\x9cHow are you doing, Paula?\xe2\x80\x9d\xe2\x80\xa6\nPlaintiff voluntarily terminated her employment with AIDC on February 20, 1993, in order to\nmove to California with her husband\xe2\x80\xa6. She states that in January 1994, while visiting family and\nfriends in Arkansas, she was informed of an article in The American Spectator magazine that she\nclaims referred to her alleged encounter with the Governor at the Excelsior Hotel and incorrectly\nsuggested that she had engaged in sexual relations with the Governor. Plaintiff states that she also\nencountered Ferguson in a restaurant during this same time and that he indicated he was the source\nfor the article and that he knew she had refused the Governor\xe2\x80\x99s alleged advances because, he said,\n\xe2\x80\x9cClinton told me you wouldn\xe2\x80\x99t do anything anyway, Paula.\xe2\x80\x9d\nOn February 11, 1994, at an event attended by the media, plaintiff states that she publicly asked\nPresident Clinton to acknowledge the incident mentioned in the article in The American Spectator,\nto state that she had rejected his advances, and to apologize to her, but that the President responded\nto her request for an apology by having his press spokespersons deliver a statement on his behalf\nthat the incident never happened and that he never met plaintiff. Thereafter, on May 6, 1994,\nplaintiff filed this lawsuit. Plaintiff\xe2\x80\x99s amended complaint\xe2\x80\xa6asserts a claim of intentional infliction of\nemotional distress or outrage against Governor Clinton, based primarily on the alleged incident at\nthe hotel but also encompassing subsequent alleged acts.\nThe President [argues that]\xe2\x80\xa6plaintiff\xe2\x80\x99s claim of intentional infliction of emotional distress or\noutrage fails because (a) by plaintiff\xe2\x80\x99s own testimony, the conduct at issue does not constitute\nintentional infliction of emotional distress or outrage under Arkansas law,[3] and (b) plaintiff did not\nas a result of the alleged conduct suffer emotional distress so severe that no reasonable person could\nendure it\xe2\x80\xa6.\nTo establish a claim of intentional infliction of emotional distress, a plaintiff must prove that:\n(1) the defendant intended to inflict emotional distress or knew or should have known that\nemotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous\nand utterly intolerable in a civilized community; (3) the defendant\xe2\x80\x99s conduct was the cause of the\nplaintiff\xe2\x80\x99s distress; and (4) the plaintiff\xe2\x80\x99s emotional distress was so severe in nature that no\nreasonable person could be expected to endure it.\nThe President argues that the alleged conduct of which plaintiff complains was brief and isolated;\ndid not result in any physical harm or objective symptoms of the requisite severe distress; did not result\nin distress so severe that no reasonable person could be expected to endure it; and he had no knowledge\nof any special condition of plaintiff that would render her particularly susceptible to distress. He argues\nthat plaintiff has failed to identify the kind of clear cut proof that Arkansas courts require for a claim\nof outrage and that he is therefore entitled to summary judgment. The Court agrees.\nOne is subject to liability for the tort of outrage or intentional infliction of emotional distress if\nhe or she wilfully or wantonly causes severe emotional distress to another by extreme and outrageous\nconduct\xe2\x80\xa6. [B]y extreme and outrageous conduct, we mean conduct that is so outrageous in\ncharacter, and so extreme in degree, as to go beyond all possible bounds of decency, and to be\nregarded as atrocious, and utterly intolerable in civilized society. Whether conduct is \xe2\x80\x9cextreme and\n3\nUnder Arkansas law, the tort of intentional infliction of emotional distress and the tort of outrage are essentially the\nsame causes of action and are governed by the same standards.\n\n\x0c266\n\nTORT LAW\n\noutrageous\xe2\x80\x9d is determined by looking at the conduct at issue; the period of time over which the\nconduct took place; the relation between plaintiff and defendant; and defendant\xe2\x80\x99s knowledge that\nplaintiff is particularly susceptible to emotional distress by reason of some physical or mental\npeculiarity. The tort is clearly not intended to provide legal redress for every slight insult or indignity\nthat one must endure. The Arkansas courts take a strict approach and give a narrow view to claims\nof outrage, and merely describing conduct as outrageous does not make it so.\nPlaintiff seems to base her claim of outrage on her erroneous belief that the allegations she has\npresented are sufficient to constitute criminal sexual assault. She states that \xe2\x80\x9cMr. Clinton\xe2\x80\x99s\noutrageous conduct includes offensive language, an offensive proposition, offensive touching\n(constituting sexual assault under both federal and state definitions), and actual exposure of an\nintimate private body part,\xe2\x80\x9d and that \xe2\x80\x9cthere are few more outrageous acts than a criminal sexual\nassault followed by unwanted exposure, coupled with a demand for oral sex by the most powerful\nman in the state against a very young, low-level employee.\xe2\x80\x9d\nWhile the Court will certainly agree that plaintiff\xe2\x80\x99s allegations describe offensive conduct, the\nCourt, as previously noted, has found that the Governor\xe2\x80\x99s alleged conduct does not constitute sexual\nassault. Rather, the conduct as alleged by plaintiff describes a mere sexual proposition or encounter,\nalbeit an odious one, that was relatively brief in duration, did not involve any coercion or threats of\nreprisal, and was abandoned as soon as plaintiff made clear that the advance was not welcome. The\nCourt is not aware of any authority holding that such a sexual encounter or proposition of the type\nalleged in this case, without more, gives rise to a claim of outrage. Cf. Croom v. Younts, 913 S.W.2d\n283 (Ark. 1996) (use of wine and medication by a vastly older relative to foist sex on a minor cousin\nwent \xe2\x80\x9cbeyond a mere sexual encounter\xe2\x80\x9d and offended all sense of decency).\nMoreover, notwithstanding the offensive nature of the Governor\xe2\x80\x99s alleged conduct, plaintiff\nadmits that she never missed a day of work following the alleged incident, she continued to work at\nAIDC another nineteen months (leaving only because of her husband\xe2\x80\x99s job transfer), she continued\nto go on a daily basis to the Governor\xe2\x80\x99s Office to deliver items and never asked to be relieved of that\nduty, she never filed a formal complaint or told her supervisors of the incident while at AIDC, she\nnever consulted a psychiatrist, psychologist, or incurred medical bills as a result of the alleged\nincident, and she acknowledges that her two subsequent contacts with the Governor involved\ncomments made \xe2\x80\x9cin a light vein\xe2\x80\x9d and nonsexual contact that was done in a \xe2\x80\x9cfriendly fashion.\xe2\x80\x9d\nFurther, despite earlier claiming that she suffered marital discord and humiliation, plaintiff stated\nin her deposition that she was not claiming damages to her marriage as a result of the Governor\xe2\x80\x99s\nalleged conduct, and she acknowledged the request to drop her claim of injury to reputation by\nstating, \xe2\x80\x9cI didn\xe2\x80\x99t really care if it was dropped or not personally.\xe2\x80\x9d Plaintiff\xe2\x80\x99s actions and statements in\nthis case do not portray someone who experienced emotional distress so severe in nature that no\nreasonable person could be expected to endure it. Cf. Hamaker v. Ivy, 51 F.3d 108 (8th Cir. 1995)\n(no claim of outrage where plaintiff, who had a speech impediment and an I.Q. of between 75 and\n100, was \xe2\x80\x9cred-faced and angry,\xe2\x80\x9d had an \xe2\x80\x9cincreased heart rate and blood pressure,\xe2\x80\x9d and had trouble\nsleeping four days after incident involving \xe2\x80\x9crather nasty\xe2\x80\x9d practical joke).\nNevertheless, plaintiff submits a declaration from a purported expert with a Ph.D. in education\nand counseling, Patrick J. Carnes, who, after a 3.5 hour meeting with plaintiff and her husband a\nmere four days prior to the filing of President Clinton\xe2\x80\x99s motion for summary judgment, opines that\nher alleged encounter with Governor Clinton in 1991, \xe2\x80\x9cand the ensuing events,\xe2\x80\x9d have caused\nplaintiff to suffer severe emotional distress and \xe2\x80\x9cconsequent sexual aversion.\xe2\x80\x9d The Court does not\ncredit this declaration.\nIn Angle v. Alexander, 945 S.W.2d 933 (Ark. 1997), the Arkansas Supreme Court noted that\nabsent physical harm, courts look for more in the way of extreme outrage as an assurance that the\nmental disturbance claimed is not fictitious. In that case, the plaintiffs offered their own testimony\nthat they had experienced emotional distress, thoughts of death, fear, anger, and worry, but little\nelse. In concluding that there was no evidence of extreme emotional distress required to prevail on\nan outrage claim, the Court found it significant that none had seen a physician or mental health\nprofessional for these concerns. The Court did not allow the fact that one plaintiff \xe2\x80\x9con the advice of\nher attorney, spoke to a psychologist\xe2\x80\x9d to overcome her failure of proof on this point\xe2\x80\xa6.\n\n\x0cCASES & CRITIQUE\n\n267\n\n[T]he opinions stated [in the Carnes\xe2\x80\x99 declaration] are vague and conclusory and, as in Angle, do\nnot suffice to overcome plaintiff\xe2\x80\x99s failure of proof on her claim of outrage. Cf. Crenshaw v. GeorgiaPacific Corp., 915 F. Supp. 93 (W.D. Ark. 1995) (affidavit prepared after opposing motion for\nsummary judgment filed detailing symptoms of weight loss, lack of sleep, headache, worry, and\nnausea, failed to present sufficient evidence of emotional distress).\nIn sum, plaintiff\xe2\x80\x99s allegations fall far short of the rigorous standards for establishing a claim of\noutrage under Arkansas law and the Court therefore grants the President\xe2\x80\x99s motion for summary\njudgment on this claim\xe2\x80\xa6.\n1.\n\nQUESTIONS\nFojtik Revisited: Could Paula Jones have sued President Clinton for false imprisonment?\nWhat about assault? Would she have been more successful with those claims?\n\n2.\n\nMens Rea: If you were Paula Jones\xe2\x80\x99s lawyer, which facts would you highlight to establish\nthat President Clinton intended to cause your client emotional distress? If you were\nPresident Clinton\xe2\x80\x99s lawyer, which facts would you use in your defense? How might both\nparties address the question of whether President Clinton was at least reckless?\n\n3.\n\n#MeToo: Do you think this case would have come out differently if it had been litigated\nafter the #MeToo movement?\nHUSTLER MAGAZINE, INC. v. FALWELL\nSupreme Court of the United States (1988)\n\nRehnquist, Chief Justice:\n\n\xc3\xa3\n\nPetitioner Hustler Magazine, Inc., is a magazine of\nnationwide circulation. Respondent Jerry Falwell, a\nnationally known minister who has been active as a\ncommentator on politics and public affairs, sued\npetitioner and its publisher, petitioner Larry Flynt, to\nrecover damages for invasion of privacy, libel, and\nintentional infliction of emotional distress. The District\nCourt directed a verdict against respondent on the\nprivacy claim, and submitted the other two claims to a\njury. The jury found for petitioners on the defamation\nclaim, but found for respondent on the claim for\nintentional infliction of emotional distress and awarded\ndamages. We now consider whether this award is\nconsistent with the [First Amendment].\nThe inside front cover of the November 1983 issue\nof Hustler Magazine featured a \xe2\x80\x9cparody\xe2\x80\x9d of an\nadvertisement for Campari Liqueur that contained the\nname and picture of respondent and was entitled \xe2\x80\x9cJerry\nFalwell talks about his first time.\xe2\x80\x9d This parody was\nmodeled after actual Campari ads that included\ninterviews with various celebrities about their \xe2\x80\x9cfirst times.\xe2\x80\x9d Although it was apparent by the end of\neach interview that this meant the first time they sampled Campari, the ads clearly played on the\nsexual double entendre of the general subject of \xe2\x80\x9cfirst times.\xe2\x80\x9d Copying the form and layout of these\nCampari ads, Hustler\xe2\x80\x99s editors chose respondent as the featured celebrity and drafted an alleged\n\xe2\x80\x9cinterview\xe2\x80\x9d with him in which he states that his \xe2\x80\x9cfirst time\xe2\x80\x9d was during a drunken incestuous\nrendezvous with his mother in an outhouse. The Hustler parody portrays respondent and his\nmother as drunk and immoral, and suggests that respondent is a hypocrite who preaches only when\nhe is drunk. In small print at the bottom of the page, the ad contains the disclaimer, \xe2\x80\x9cad parody \xe2\x80\x94\n\xc3\xa3\n\nJerry Falwell Talks About His First Time, HUSTLER (Nov. 1983).\n\n\x0c268\n\nTORT LAW\n\nnot to be taken seriously.\xe2\x80\x9d The magazine\xe2\x80\x99s table of contents also lists the ad as \xe2\x80\x9cFiction; Ad and\nPersonality Parody.\xe2\x80\x9d\xe2\x80\xa6\nThe jury\xe2\x80\xa6found against respondent on the libel claim, specifically finding that the ad parody\ncould not \xe2\x80\x9creasonably be understood as describing actual facts about [Falwell] or actual events in\nwhich he participated.\xe2\x80\x9d The jury ruled for respondent on the intentional infliction of emotional\ndistress claim, however, and stated that he should be awarded $100,000 in compensatory damages,\nas well as $50,000 each in punitive damages from petitioners\xe2\x80\xa6.\nThis case presents us with a novel question involving First Amendment limitations upon a State\xe2\x80\x99s\nauthority to protect its citizens from the intentional infliction of emotional distress. We must decide\nwhether a public figure may recover damages for emotional harm caused by the publication of an\nad parody offensive to him, and doubtless gross and repugnant in the eyes of most. Respondent\nwould have us find that a State\xe2\x80\x99s interest in protecting public figures from emotional distress is\nsufficient to deny First Amendment protection to speech that is patently offensive and is intended\nto inflict emotional injury, even when that speech could not reasonably have been interpreted as\nstating actual facts about the public figure involved. This we decline to do.\nAt the heart of the First Amendment is the recognition of the fundamental importance of the\nfree flow of ideas and opinions on matters of public interest and concern. The freedom to speak\none\xe2\x80\x99s mind is not only an aspect of individual liberty\xe2\x80\x94and thus a good unto itself\xe2\x80\x94but also is\nessential to the common quest for truth and the vitality of society as a whole. We have therefore\nbeen particularly vigilant to ensure that individual expressions of ideas remain free from\ngovernmentally imposed sanctions. The First Amendment recognizes no such thing as a \xe2\x80\x9cfalse\xe2\x80\x9d idea.\nAs Justice Holmes wrote, \xe2\x80\x9cwhen men have realized that time has upset many fighting faiths, they\nmay come to believe even more than they believe the very foundations of their own conduct that the\nultimate good desired is better reached by free trade in ideas\xe2\x80\x94that the best test of truth is the power\nof the thought to get itself accepted in the competition of the market.\xe2\x80\x9d Abrams v. United States, 250\nU.S. 616 (1919) (dissenting opinion).\nThe sort of robust political debate encouraged by the First Amendment is bound to produce\nspeech that is critical of those who hold public office or those public figures who are intimately\ninvolved in the resolution of important public questions or, by reason of their fame, shape events in\nareas of concern to society at large. Justice Frankfurter put it succinctly in Baumgartner v. United\nStates, 322 U.S. 665 (1944), when he said that \xe2\x80\x9cone of the prerogatives of American citizenship is the\nright to criticize public men and measures.\xe2\x80\x9d Such criticism, inevitably, will not always be reasoned\nor moderate; public figures as well as public officials will be subject to \xe2\x80\x9cvehement, caustic, and\nsometimes unpleasantly sharp attacks.\xe2\x80\x9d New York Times Co. v. Sullivan, 376 U.S. 254 (1964)\xe2\x80\xa6.\nOf course, this does not mean that any speech about a public figure is immune from sanction in\nthe form of damages. Since New York Times Co. v. Sullivan, we have consistently ruled that a public\nfigure may hold a speaker liable for the damage to reputation caused by publication of a defamatory\nfalsehood, but only if the statement was made with knowledge that it was false or with reckless\ndisregard of whether it was false or not. False statements of fact are particularly valueless; they\ninterfere with the truth-seeking function of the marketplace of ideas, and they cause damage to an\nindividual\xe2\x80\x99s reputation that cannot easily be repaired by counterspeech, however persuasive or\neffective. But even though falsehoods have little value in and of themselves, they are nevertheless\ninevitable in free debate, and a rule that would impose strict liability on a publisher for false factual\nassertions would have an undoubted \xe2\x80\x9cchilling\xe2\x80\x9d effect on speech relating to public figures that does\nhave constitutional value. Freedoms of expression require \xe2\x80\x9cbreathing space.\xe2\x80\x9d This breathing space\nis provided by a constitutional rule that allows public figures to recover for libel or defamation only\nwhen they can prove both that the statement was false and that the statement was made with the\nrequisite level of culpability.\nRespondent argues, however, that a different standard should apply in this case because here the\nState seeks to prevent not reputational damage, but the severe emotional distress suffered by the\nperson who is the subject of an offensive publication. In respondent\xe2\x80\x99s view, and in the view of\nthe Court of Appeals, so long as the utterance was intended to inflict emotional distress, was\noutrageous, and did in fact inflict serious emotional distress, it is of no constitutional import whether\nthe statement was a fact or an opinion, or whether it was true or false. It is the intent to cause injury\n\n\x0cCASES & CRITIQUE\n\n269\n\nthat is the gravamen of the tort, and the State\xe2\x80\x99s interest in preventing emotional harm simply\noutweighs whatever interest a speaker may have in speech of this type.\nGenerally speaking the law does not regard the intent to inflict emotional distress as one which\nshould receive much solicitude, and it is quite understandable that most if not all jurisdictions have\nchosen to make it civilly culpable where the conduct in question is sufficiently \xe2\x80\x9coutrageous.\xe2\x80\x9d But in\nthe world of debate about public affairs, many things done with motives that are less than admirable\nare protected by the First Amendment. In Garrison v. Louisiana, 379 U.S. 64 (1964), we held that\neven when a speaker or writer is motivated by hatred or ill will his expression was protected by the\nFirst Amendment: \xe2\x80\x9cDebate on public issues will not be uninhibited if the speaker must run the risk\nthat it will be proved in court that he spoke out of hatred; even if he did speak out of hatred,\nutterances honestly believed contribute to the free interchange of ideas and the ascertainment of\ntruth.\xe2\x80\x9d Thus while such a bad motive may be deemed controlling for purposes of tort liability in\nother areas of the law, we think the First Amendment prohibits such a result in the area of public\ndebate about public figures.\nWere we to hold otherwise, there can be little doubt that political cartoonists and satirists would\nbe subjected to damages awards without any showing that their work falsely defamed its subject.\nWebster\xe2\x80\x99s defines a caricature as \xe2\x80\x9cthe deliberately distorted picturing or imitating of a person,\nliterary style, etc. by exaggerating features or mannerisms for satirical effect.\xe2\x80\x9d The appeal of the\npolitical cartoon or caricature is often based on exploitation of unfortunate physical traits or\npolitically embarrassing events\xe2\x80\x94an exploitation often calculated to injure the feelings of the subject\nof the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and onesided. One cartoonist expressed the nature of the art in these words: \xe2\x80\x9cThe political cartoon is a\nweapon of attack, of scorn and ridicule and satire; it is least effective when it tries to pat some\npolitician on the back. It is usually as welcome as a bee sting and is always controversial in some\nquarters.\xe2\x80\x9d Long, The Political Cartoon: Journalism\xe2\x80\x99s Strongest Weapon, The Quill (Nov. 1962).\nSeveral famous examples of this type of intentionally injurious speech were drawn by Thomas\nNast, probably the greatest American cartoonist to date, who was associated for many years during\nthe post-Civil War era with Harper\xe2\x80\x99s Weekly. In the pages of that publication Nast conducted a\ngraphic vendetta against William M. \xe2\x80\x9cBoss\xe2\x80\x9d Tweed and his corrupt associates in New York City\xe2\x80\x99s\n\xe2\x80\x9cTweed Ring.\xe2\x80\x9d It has been described by one historian of the subject as \xe2\x80\x9ca sustained attack which in\nits passion and effectiveness stands alone in the history of American graphic art.\xe2\x80\x9d M. Keller, The Art\nand Politics of Thomas Nast (1968). Another writer explains that the success of the Nast cartoon was\nachieved \xe2\x80\x9cbecause of the emotional impact of its presentation. It continuously goes beyond the\nbounds of good taste and conventional manners.\xe2\x80\x9d C. Press, The Political Cartoon (1981).\nDespite their sometimes caustic nature, from the early cartoon portraying George Washington\nas an ass down to the present day, graphic depictions and satirical cartoons have played a prominent\nrole in public and political debate\xe2\x80\xa6. Lincoln\xe2\x80\x99s tall, gangling posture, Teddy Roosevelt\xe2\x80\x99s glasses and\nteeth, and Franklin D. Roosevelt\xe2\x80\x99s jutting jaw and cigarette holder have been memorialized by\npolitical cartoons with an effect that could not have been obtained by the photographer or the\nportrait artist. From the viewpoint of history it is clear that our political discourse would have been\nconsiderably poorer without them.\nRespondent contends, however, that the caricature in question here was so \xe2\x80\x9coutrageous\xe2\x80\x9d as to\ndistinguish it from more traditional political cartoons. There is no doubt that the caricature of\nrespondent and his mother published in Hustler is at best a distant cousin of the political cartoons\ndescribed above, and a rather poor relation at that. If it were possible by laying down a principled\nstandard to separate the one from the other, public discourse would probably suffer little or no harm.\nBut we doubt that there is any such standard, and we are quite sure that the pejorative description\n\xe2\x80\x9coutrageous\xe2\x80\x9d does not supply one. \xe2\x80\x9cOutrageousness\xe2\x80\x9d in the area of political and social discourse has\nan inherent subjectiveness about it which would allow a jury to impose liability on the basis of the\njurors\xe2\x80\x99 tastes or views, or perhaps on the basis of their dislike of a particular expression. An\n\xe2\x80\x9coutrageousness\xe2\x80\x9d standard thus runs afoul of our longstanding refusal to allow damages to be\nawarded because the speech in question may have an adverse emotional impact on the audience.\nSee NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (\xe2\x80\x9cSpeech does not lose its protected\n\n\x0c270\n\nTORT LAW\n\ncharacter\xe2\x80\xa6simply because it may embarrass others or coerce them into action.\xe2\x80\x9d). And, as we stated\nin FCC v. Pacifica Foundation, 438 U.S. 726 (1978):\nThe fact that society may find speech offensive is not a sufficient reason for\nsuppressing it. Indeed, if it is the speaker\xe2\x80\x99s opinion that gives offense, that\nconsequence is a reason for according it constitutional protection. For it is a\ncentral tenet of the First Amendment that the government must remain neutral\nin the marketplace of ideas\xe2\x80\xa6.\nAdmittedly, these oft-repeated First Amendment principles, like other principles, are subject to\nlimitations. We recognized in Pacifica Foundation, that speech that is \xe2\x80\x9cvulgar, offensive, and\nshocking\xe2\x80\x9d is \xe2\x80\x9cnot entitled to absolute constitutional protection under all circumstances.\xe2\x80\x9d In\nChaplinsky v. New Hampshire, 315 U.S. 568 (1942), we held that a State could lawfully punish an\nindividual for the use of insulting \xe2\x80\x9c\xe2\x80\x98fighting\xe2\x80\x99 words\xe2\x80\x94those which by their very utterance inflict\ninjury or tend to incite an immediate breach of the peace.\xe2\x80\x9d These limitations are but recognition of\nthe observation\xe2\x80\xa6that this Court has long recognized that not all speech is of equal First Amendment\nimportance. But the sort of expression involved in this case does not seem to us to be governed by\nany exception to the general First Amendment principles stated above.\nWe conclude that public figures and public officials may not recover for the tort of intentional\ninfliction of emotional distress by reason of publications such as the one here at issue without\nshowing in addition that the publication contains a false statement of fact which was made with\n\xe2\x80\x9cactual malice,\xe2\x80\x9d i.e., with knowledge that the statement was false or with reckless disregard as to\nwhether or not it was true. This is not merely a blind application of the New York Times standard, it\nreflects our considered judgment that such a standard is necessary to give adequate \xe2\x80\x9cbreathing\nspace\xe2\x80\x9d to the freedoms protected by the First Amendment.\nHere it is clear that respondent Falwell is a \xe2\x80\x9cpublic figure\xe2\x80\x9d for purposes of First Amendment\nlaw.1 The jury found against respondent on his libel claim when it decided that the Hustler ad parody\ncould not \xe2\x80\x9creasonably be understood as describing actual facts about [Falwell] or actual events in\nwhich he participated.\xe2\x80\x9d The Court of Appeals interpreted the jury\xe2\x80\x99s finding to be that the ad parody\n\xe2\x80\x9cwas not reasonably believable,\xe2\x80\x9d and in accordance with our custom we accept this finding.\nRespondent is thus relegated to his claim for damages awarded by the jury for the intentional\ninfliction of emotional distress by \xe2\x80\x9coutrageous\xe2\x80\x9d conduct. But for reasons heretofore stated this claim\ncannot, consistently with the First Amendment, form a basis for the award of damages when the\nconduct in question is the publication of a caricature such as the ad parody involved here. The\njudgment of the Court of Appeals is accordingly Reversed.\nWhite, Justice, concurring:\nAs I see it, the decision in New York Times Co. v. Sullivan has little to do with this case, for here\nthe jury found that the ad contained no assertion of fact. But I agree with the Court that the judgment\nbelow, which penalized the publication of the parody, cannot be squared with the First Amendment.\n1.\n\n2.\n\n1\n\nQUESTIONS\nKitchen-Sink Complaints: Intentional infliction of emotional distress is sometimes\npatronizingly pitched as a \xe2\x80\x9cgap-filler\xe2\x80\x9d claim when other veteran torts might not do the\ntrick. Why couldn\xe2\x80\x99t Falwell confidently rely on defamation or public disclosure of private\nfacts? How does parodic or satirical speech pose challenges for both of those torts?\nFreeing Our Speech: Chief Justice Rehnquist tells us that \xe2\x80\x9cfreedom to speak one\xe2\x80\x99s mind\nis not only an aspect of individual liberty\xe2\x80\x94and thus a good unto itself\xe2\x80\x94but also is\nessential to the common quest for truth and the vitality of society as a whole.\xe2\x80\x9d In this\nsingle sentence, he condenses three dominant justifications for free speech. How is each\njustification arguably served in this case by immunizing Hustler Magazine for\n\nNeither party disputes this conclusion. Respondent is the host of a nationally syndicated television show and was the\nfounder and president of a political organization formerly known as the Moral Majority. He is also the founder of Liberty\nUniversity in Lynchburg, Virginia, and is the author of several books and publications.\n\n\x0cCASES & CRITIQUE\n\n271\n\nintentional infliction of emotional distress? And what standard does the Court establish\nto ensure this constitutional respect in future cases? Does it seem like an appropriate\nstandard for the tort interest at issue?\n3.\n\nActually Malicious: Is there any doubt that Larry Flynt, in publishing the ad parody,\nacted intentionally or recklessly to inflict emotional distress on Falwell? Consider this\ncolloquy between Falwell\xe2\x80\x99s lawyer and Flynt: \xe2\x80\x9cQ. Did you want to upset Reverend\nFalwell? A. Yes\xe2\x80\xa6. Q. Do you recognize that in having published what you did in this ad,\nyou were attempting to convey to the people who read it that Reverend Falwell was just\nas you characterized him, a liar? A. He\xe2\x80\x99s a glutton. Q. How about a liar? A. Yeah. He\xe2\x80\x99s a\nliar, too. Q. How about a hypocrite? A. Yeah. Q. That\xe2\x80\x99s what you wanted to convey?\nA. Yeah. Q. And didn\xe2\x80\x99t it occur to you that if it wasn\xe2\x80\x99t true, you were attacking a man in\nhis profession? A. Yes. Q. Did you appreciate, at the time that you wrote \xe2\x80\x98okay\xe2\x80\x99 or\napproved this publication, that for Reverend Falwell to function in his livelihood, and in\nhis commitment and career, he has to have an integrity that people believe in? A. Yeah.\nQ. And wasn\xe2\x80\x99t one of your objectives to destroy that integrity, or harm it, if you could?\nA. To assassinate it.\xe2\x80\x9d Setting aside Flynt\xe2\x80\x99s intentions, do you believe that Falwell actually\nsuffered severe distress? Testifying about his reaction to seeing the ad, Falwell said: \xe2\x80\x9cI\nthink I have never been as angry as I was at that moment\xe2\x80\xa6. I somehow felt that in all of\nmy life I had never believed that human beings could do something like this. I really felt\nlike weeping. I am not a deeply emotional person; I don\xe2\x80\x99t show it. I think I felt like\nweeping.\xe2\x80\x9d Even Chief Justice Rehnquist conceded that the ad was \xe2\x80\x9cdoubtless gross and\nrepugnant in the eyes of most.\xe2\x80\x9d With facts like these, is free speech a good enough reason\nto deprive a person of tort remedies?\nThe following case includes discussion of sexual assault and homophobic slurs.\nSNYDER v. PHELPS\nSupreme Court of the United States (2011)\n\nRoberts, Chief Justice:\n\n\xc3\xa3\n\n\xe2\x80\xa6Fred Phelps founded the Westboro Baptist Church in\nTopeka, Kansas, in 1955. The church\xe2\x80\x99s congregation believes that\nGod hates and punishes the United States for its tolerance of\nhomosexuality, particularly in America\xe2\x80\x99s military. The church\nfrequently communicates its views by picketing, often at military\nfunerals. In the more than 20 years that the members of Westboro\nBaptist have publicized their message, they have picketed nearly\n600 funerals\xe2\x80\xa6.\n[The church picketed the funeral of Marine Lance Corporal\nMatthew Snyder, who was killed in Iraq. The picketers were\nwithin a few hundred feet of the funeral procession, but they did\nnot yell profanity, use violence, or violate police instructions.\nInstead, for about thirty minutes before the funeral, they sang\nhymns, recited Bible verses, and displayed signs featuring various\noffensive messages. Matthew\xe2\x80\x99s father could see the tops of the signs as he drove to the funeral, but\nhe did not see what was written on them until he watched a news broadcast later that night.]1\n\n\xc3\xa3\n\nWestboro Baptist Church \xc2\xa9 1955-2021.\nA few weeks after the funeral, one of the picketers posted a message on Westboro\xe2\x80\x99s Web site discussing the picketing\nand containing religiously oriented denunciations of the Snyders, interspersed among lengthy Bible quotations. Snyder\ndiscovered the posting, referred to by the parties as the \xe2\x80\x9cepic,\xe2\x80\x9d during an Internet search for his son\xe2\x80\x99s name. The epic is not\nproperly before us and does not factor in our analysis. Although the epic was submitted to the jury and discussed in the courts\nbelow, Snyder never mentioned it in his petition for certiorari\xe2\x80\xa6. Snyder devoted only one paragraph in the argument section\n1\n\n\x0c272\n\nTORT LAW\n\nSnyder [Matthew\xe2\x80\x99s father] filed suit against Phelps, Phelps\xe2\x80\x99s daughters, and the Westboro Baptist\nChurch [for state-law tort claims, including] defamation, publicity given to private life, [and]\nintentional infliction of emotional distress\xe2\x80\xa6. The District Court awarded Westboro summary\njudgment on Snyder\xe2\x80\x99s claims for defamation and publicity given to private life, concluding that\nSnyder could not prove the necessary elements of those torts. A trial was held on the remaining\nclaims. At trial, Snyder described the severity of his emotional injuries. He testified that he is unable\nto separate the thought of his dead son from his thoughts of Westboro\xe2\x80\x99s picketing, and that he often\nbecomes tearful, angry, and physically ill when he thinks about it. Expert witnesses testified that\nSnyder\xe2\x80\x99s emotional anguish had resulted in severe depression and had exacerbated pre-existing\nhealth conditions. A jury found for Snyder on the intentional infliction of emotional distress\n[claim]\xe2\x80\xa6and held Westboro liable for $2.9 million in compensatory damages and $8 million in\npunitive damages. Westboro filed several post-trial motions, including a motion contending that\nthe jury verdict was grossly excessive and a motion seeking judgment as a matter of law on all claims\non First Amendment grounds. The District Court remitted the punitive damages award to $2.1\nmillion, but left the jury verdict otherwise intact\xe2\x80\xa6.\nTo succeed on a claim for intentional infliction of emotional distress in Maryland, a plaintiff\nmust demonstrate that the defendant intentionally or recklessly engaged in extreme and outrageous\nconduct that caused the plaintiff to suffer severe emotional distress. The Free Speech Clause of the\nFirst Amendment\xe2\x80\x94\xe2\x80\x9cCongress shall make no law\xe2\x80\xa6abridging the freedom of speech\xe2\x80\x9d\xe2\x80\x94can serve as\na defense in state tort suits, including suits for intentional infliction of emotional distress. Whether\nthe First Amendment prohibits holding Westboro liable for its speech in this case turns largely on\nwhether that speech is of public or private concern, as determined by all the circumstances of the\ncase. Speech on matters of public concern is at the heart of the First Amendment\xe2\x80\x99s protection. The\nFirst Amendment reflects \xe2\x80\x9ca profound national commitment to the principle that debate on public\nissues should be uninhibited, robust, and wide-open.\xe2\x80\x9d New York Times Co. v. Sullivan, 376 U.S. 254\n(1964). That is because speech concerning public affairs is more than self-expression; it is the essence\nof self-government. Accordingly, speech on public issues occupies the highest rung of the hierarchy\nof First Amendment values, and is entitled to special protection.\nNot all speech is of equal First Amendment importance, however, and where matters of purely\nprivate significance are at issue, First Amendment protections are often less rigorous. That is\nbecause restricting speech on purely private matters does not implicate the same constitutional\nconcerns as limiting speech on matters of public interest: There is no threat to the free and robust\ndebate of public issues; there is no potential interference with a meaningful dialogue of ideas; and\nthe threat of liability does not pose the risk of a reaction of self-censorship on matters of\npublic import.\nWe noted a short time ago, in considering whether public employee speech addressed a matter\nof public concern, that \xe2\x80\x9cthe boundaries of the public concern test are not well defined.\xe2\x80\x9d San Diego v.\nRoe, 543 U.S. 77 (2004) (per curiam). Although that remains true today, we have articulated some\nguiding principles, principles that accord broad protection to speech to ensure that courts\nthemselves do not become inadvertent censors.\nSpeech deals with matters of public concern when it can be fairly considered as relating to any\nmatter of political, social, or other concern to the community, or when it is a subject of legitimate\nnews interest; that is, a subject of general interest and of value and concern to the public. The\narguably inappropriate or controversial character of a statement is irrelevant to the question whether\nit deals with a matter of public concern.\nOur opinion in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), on the\nother hand, provides an example of speech of only private concern. In that case we held, as a general\nmatter, that information about a particular individual\xe2\x80\x99s credit report \xe2\x80\x9cconcerns no public issue.\xe2\x80\x9d The\ncontent of the report, we explained, \xe2\x80\x9cwas speech solely in the individual interest of the speaker and\nits specific business audience.\xe2\x80\x9d That was confirmed by the fact that the particular report was sent to\nonly five subscribers to the reporting service, who were bound not to disseminate it further. To cite\nof his opening merits brief to the epic. Given the foregoing and the fact that an Internet posting may raise distinct issues in\nthis context, we decline to consider the epic in deciding this case.\n\n\x0cCASES & CRITIQUE\n\n273\n\nanother example, we concluded in San Diego v. Roe that, in the context of a government employer\nregulating the speech of its employees, videos of an employee engaging in sexually explicit acts did\nnot address a public concern; the videos did nothing to inform the public about any aspect of the\nemploying agency\xe2\x80\x99s functioning or operation.\nDeciding whether speech is of public or private concern requires us to examine the content,\nform, and context of that speech, as revealed by the whole record. As in other First Amendment\ncases, the court is obligated to make an independent examination of the whole record in order to\nmake sure that the judgment does not constitute a forbidden intrusion on the field of free expression.\nIn considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all\nthe circumstances of the speech, including what was said, where it was said, and how it was said.\nThe \xe2\x80\x9ccontent\xe2\x80\x9d of Westboro\xe2\x80\x99s signs plainly relates to broad issues of interest to society at large,\nrather than matters of \xe2\x80\x9cpurely private concern.\xe2\x80\x9d The placards read \xe2\x80\x9cGod Hates the USA/Thank God\nfor 9/11,\xe2\x80\x9d \xe2\x80\x9cAmerica is Doomed,\xe2\x80\x9d \xe2\x80\x9cDon\xe2\x80\x99t Pray for the USA,\xe2\x80\x9d \xe2\x80\x9cThank God for IEDs,\xe2\x80\x9d \xe2\x80\x9cFag Troops,\xe2\x80\x9d\n\xe2\x80\x9cSemper Fi Fags,\xe2\x80\x9d \xe2\x80\x9cGod Hates Fags,\xe2\x80\x9d \xe2\x80\x9cMaryland Taliban,\xe2\x80\x9d \xe2\x80\x9cFags Doom Nations,\xe2\x80\x9d \xe2\x80\x9cNot Blessed\nJust Cursed,\xe2\x80\x9d \xe2\x80\x9cThank God for Dead Soldiers,\xe2\x80\x9d \xe2\x80\x9cPope in Hell,\xe2\x80\x9d \xe2\x80\x9cPriests Rape Boys,\xe2\x80\x9d \xe2\x80\x9cYou\xe2\x80\x99re Going\nto Hell,\xe2\x80\x9d and \xe2\x80\x9cGod Hates You.\xe2\x80\x9d While these messages may fall short of refined social or political\ncommentary, the issues they highlight\xe2\x80\x94the political and moral conduct of the United States and its\ncitizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic\nclergy\xe2\x80\x94are matters of public import. The signs certainly convey Westboro\xe2\x80\x99s position on those\nissues, in a manner designed, unlike the private speech in Dun & Bradstreet, to reach as broad a\npublic audience as possible. And even if a few of the signs\xe2\x80\x94such as \xe2\x80\x9cYou\xe2\x80\x99re Going to Hell\xe2\x80\x9d and \xe2\x80\x9cGod\nHates You\xe2\x80\x9d\xe2\x80\x94were viewed as containing messages related to Matthew Snyder or the Snyders\nspecifically, that would not change the fact that the overall thrust and dominant theme of Westboro\xe2\x80\x99s\ndemonstration spoke to broader public issues\xe2\x80\xa6.\nApart from the content of Westboro\xe2\x80\x99s signs, Snyder contends that the \xe2\x80\x9ccontext\xe2\x80\x9d of the speech\xe2\x80\x94\nits connection with his son's funeral\xe2\x80\x94makes the speech a matter of private rather than public\nconcern. The fact that Westboro spoke in connection with a funeral, however, cannot by itself\ntransform the nature of Westboro\xe2\x80\x99s speech. Westboro\xe2\x80\x99s signs, displayed on public land next to a\npublic street, reflect the fact that the church finds much to condemn in modern society. Its speech\nis fairly characterized as constituting speech on a matter of public concern, and the funeral setting\ndoes not alter that conclusion.\nSnyder argues that the church members in fact mounted a personal attack on Snyder and his\nfamily, and then attempted to \xe2\x80\x9cimmunize their conduct by claiming that they were actually\nprotesting the United States\xe2\x80\x99 tolerance of homosexuality or the supposed evils of the Catholic\nChurch.\xe2\x80\x9d We are not concerned in this case that Westboro\xe2\x80\x99s speech on public matters was in any\nway contrived to insulate speech on a private matter from liability. Westboro had been actively\nengaged in speaking on the subjects addressed in its picketing long before it became aware of\nMatthew Snyder, and there can be no serious claim that Westboro\xe2\x80\x99s picketing did not represent its\nhonestly believed views on public issues. There was no pre-existing relationship or conflict between\nWestboro and Snyder that might suggest Westboro\xe2\x80\x99s speech on public matters was intended to mask\nan attack on Snyder over a private matter.\nSnyder goes on to argue that Westboro\xe2\x80\x99s speech should be afforded less than full First\nAmendment protection \xe2\x80\x9cnot only because of the words\xe2\x80\x9d but also because the church members\nexploited the funeral \xe2\x80\x9cas a platform to bring their message to a broader audience.\xe2\x80\x9d There is no doubt\nthat Westboro chose to stage its picketing at\xe2\x80\xa6Matthew Snyder\xe2\x80\x99s funeral to increase publicity for its\nviews and because of the relation between [the funeral] and its views\xe2\x80\x94in the case of the military\nfuneral, because Westboro believes that God is killing American soldiers as punishment for the\nNation\xe2\x80\x99s sinful policies.\nWestboro\xe2\x80\x99s choice to convey its views in conjunction with Matthew Snyder\xe2\x80\x99s funeral made the\nexpression of those views particularly hurtful to many, especially to Matthew\xe2\x80\x99s father. The\nrecord makes clear that the applicable legal term\xe2\x80\x94\xe2\x80\x9cemotional distress\xe2\x80\x9d\xe2\x80\x94fails to capture fully the\nanguish Westboro\xe2\x80\x99s choice added to Mr. Snyder\xe2\x80\x99s already incalculable grief. But Westboro\nconducted its picketing peacefully on matters of public concern at a public place adjacent to a public\nstreet. Such space occupies a special position in terms of First Amendment protection. We have\n\n\x0c274\n\nTORT LAW\n\nrepeatedly referred to public streets as the archetype of a traditional public forum, noting that \xe2\x80\x9ctime\nout of mind public streets and sidewalks have been used for public assembly and debate.\xe2\x80\x9d Frisby v.\nSchultz, 487 U.S. 474 (1988).\nThat said, even protected speech is not equally permissible in all places and at all times.\nWestboro\xe2\x80\x99s choice of where and when to conduct its picketing is not beyond the Government\xe2\x80\x99s\nregulatory reach\xe2\x80\x94it is subject to reasonable time, place, or manner restrictions\xe2\x80\xa6. Maryland now\nhas a law imposing restrictions on funeral picketing, as do 43 other States and the Federal\nGovernment. To the extent these laws are content neutral, they raise very different questions from\nthe tort verdict at issue in this case. Maryland\xe2\x80\x99s law, however, was not in effect at the time of the\nevents at issue here, so we have no occasion to consider how it might apply to facts such as those\nbefore us, or whether it or other similar regulations are constitutional\xe2\x80\xa6.\nSimply put, the church members had the right to be where they were\xe2\x80\xa6. The protest was not\nunruly; there was no shouting, profanity, or violence. The record confirms that any distress\noccasioned by Westboro\xe2\x80\x99s picketing turned on the content and viewpoint of the message conveyed,\nrather than any interference with the funeral itself. A group of parishioners standing at the very spot\nwhere Westboro stood, holding signs that said \xe2\x80\x9cGod Bless America\xe2\x80\x9d and \xe2\x80\x9cGod Loves You,\xe2\x80\x9d would\nnot have been subjected to liability. It was what Westboro said that exposed it to tort damages.\nGiven that Westboro\xe2\x80\x99s speech was at a public place on a matter of public concern, that speech is\nentitled to special protection under the First Amendment. Such speech cannot be restricted simply\nbecause it is upsetting or arouses contempt. If there is a bedrock principle underlying the First\nAmendment, it is that the government may not prohibit the expression of an idea simply because\nsociety finds the idea itself offensive or disagreeable. Indeed, the point of all speech protection is to\nshield just those choices of content that in someone\xe2\x80\x99s eyes are misguided, or even hurtful.\nThe jury here was instructed that it could hold Westboro liable for intentional infliction of\nemotional distress based on a finding that Westboro\xe2\x80\x99s picketing was \xe2\x80\x9coutrageous.\xe2\x80\x9d\n\xe2\x80\x9cOutrageousness,\xe2\x80\x9d however, is a highly malleable standard with an inherent subjectiveness about it\nwhich would allow a jury to impose liability on the basis of the jurors\xe2\x80\x99 tastes or views, or perhaps on\nthe basis of their dislike of a particular expression. In a case such as this, a jury is unlikely to be\nneutral with respect to the content of the speech, posing a real danger of becoming an instrument\nfor the suppression of vehement, caustic, and sometimes unpleasant expression. Such a risk is\nunacceptable; in public debate we must tolerate insulting, and even outrageous, speech in order to\nprovide adequate \xe2\x80\x9cbreathing space\xe2\x80\x9d to the freedoms protected by the First Amendment. What\nWestboro said, in the whole context of how and where it chose to say it, is entitled to special\nprotection under the First Amendment, and that protection cannot be overcome by a jury finding\nthat the picketing was outrageous.\nFor all these reasons, the jury verdict imposing tort liability on Westboro for intentional\ninfliction of emotional distress must be set aside\xe2\x80\xa6.\nWestboro believes that America is morally flawed; many Americans might feel the same about\nWestboro. Westboro\xe2\x80\x99s funeral picketing is certainly hurtful and its contribution to public discourse\nmay be negligible. But Westboro addressed matters of public import on public property, in a peaceful\nmanner, in full compliance with the guidance of local officials. The speech was indeed planned to\ncoincide with Matthew Snyder's funeral, but did not itself disrupt that funeral, and Westboro\xe2\x80\x99s choice\nto conduct its picketing at that time and place did not alter the nature of its speech.\nSpeech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and\xe2\x80\x94\nas it did here\xe2\x80\x94inflict great pain. On the facts before us, we cannot react to that pain by punishing\nthe speaker. As a Nation we have chosen a different course\xe2\x80\x94to protect even hurtful speech on public\nissues to ensure that we do not stifle public debate. That choice requires that we shield Westboro\nfrom tort liability for its picketing in this case\xe2\x80\xa6.\nBreyer, Justice, concurring:\n\xe2\x80\xa6While I agree with the Court\xe2\x80\x99s conclusion that the picketing addressed matters of public\nconcern, I do not believe that our First Amendment analysis can stop at that point\xe2\x80\xa6. [S]uppose that\nA were physically to assault B, knowing that the assault (being newsworthy) would provide A with\nan opportunity to transmit to the public his views on a matter of public concern. The constitutionally\n\n\x0cCASES & CRITIQUE\n\n275\n\nprotected nature of the end would not shield A\xe2\x80\x99s use of unlawful, unprotected means. And in some\ncircumstances the use of certain words as means would be similarly unprotected.\nThe dissent recognizes that the means used here consist of speech. But it points out that the\nspeech, like an assault, seriously harmed a private individual\xe2\x80\xa6. The dissent requires us to ask\nwhether our holding unreasonably limits liability for intentional infliction of emotional distress\xe2\x80\x94\nto the point where A (in order to draw attention to his views on a public matter) might launch a\nverbal assault upon B, a private person, publicly revealing the most intimate details of B\xe2\x80\x99s private\nlife, while knowing that the revelation will cause B severe emotional harm. Does our decision leave\nthe State powerless to protect the individual against invasions of, e.g., personal privacy, even in the\nmost horrendous of such circumstances?\nAs I understand the Court\xe2\x80\x99s opinion, it does not hold or imply that the State is always powerless\nto provide private individuals with necessary protection\xe2\x80\xa6.\nAlito, Justice, dissenting:\nOur profound national commitment to free and open debate is not a license for the vicious verbal\nassault that occurred in this case.\nPetitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance\nCorporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any\nparent who experiences such an incalculable loss: to bury his son in peace. But respondents,\nmembers of the Westboro Baptist Church, deprived him of that elementary right. They first issued\na press release and thus turned Matthew\xe2\x80\x99s funeral into a tumultuous media event. They then\nappeared at the church, approached as closely as they could without trespassing, and launched a\nmalevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a\nresult, Albert Snyder suffered severe and lasting emotional injury. The Court now holds that the\nFirst Amendment protected respondents\xe2\x80\x99 right to brutalize Mr. Snyder. I cannot agree.\nRespondents and other members of their church have strong opinions on certain moral,\nreligious, and political issues, and the First Amendment ensures that they have almost limitless\nopportunities to express their views. They may write and distribute books, articles, and other texts;\nthey may create and disseminate video and audio recordings; they may circulate petitions; they may\nspeak to individuals and groups in public forums and in any private venue that wishes to\naccommodate them; they may picket peacefully in countless locations; they may appear on television\nand speak on the radio; they may post messages on the Internet and send out e-mails. And they may\nexpress their views in terms that are \xe2\x80\x9cuninhibited,\xe2\x80\x9d \xe2\x80\x9cvehement,\xe2\x80\x9d and \xe2\x80\x9ccaustic.\xe2\x80\x9d\nIt does not follow, however, that they may intentionally inflict severe emotional injury on private\npersons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no\ncontribution to public debate. To protect against such injury, most if not all jurisdictions permit\nrecovery in tort for the intentional infliction of emotional distress (or IIED).\nThis is a very narrow tort with requirements that are rigorous, and difficult to satisfy\xe2\x80\xa6.\nAlthough the elements of the IIED tort are difficult to meet, respondents long ago abandoned any\neffort to show that those tough standards were not satisfied here\xe2\x80\xa6. They did not dispute that Mr.\nSnyder suffered wounds that are truly severe and incapable of healing themselves. Nor did they\ndispute that their speech was so outrageous in character, and so extreme in degree, as to go beyond\nall possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized\ncommunity. Instead, they maintained that the First Amendment gave them a license to engage in\nsuch conduct. They are wrong\xe2\x80\xa6. When grave injury is intentionally inflicted by means of an attack\nlike the one at issue here, the First Amendment should not interfere with recovery\xe2\x80\xa6.2 In order to\nhave a society in which public issues can be openly and vigorously debated, it is not necessary to\nallow the brutalization of innocent victims like petitioner. I therefore respectfully dissent.\n\n2\nThe Court refuses to consider the epic because it was not discussed in Snyder\xe2\x80\x99s petition for certiorari. The epic, however,\nis not a distinct claim but a piece of evidence that the jury considered in imposing liability for the claims now before this\nCourt. The protest and the epic are parts of a single course of conduct that the jury found to constitute intentional infliction\nof emotional distress. The Court\xe2\x80\x99s strange insistence that the epic \xe2\x80\x9cis not properly before us,\xe2\x80\x9d means that the Court has not\nactually made an independent examination of the whole record\xe2\x80\xa6.\n\n\x0c276\n\nTORT LAW\n\n1.\n\nQUESTIONS\nSullivan and Sidis Revisited: Given the facts we\xe2\x80\x99re given here, do you see why the district\ncourt rejected Snyder\xe2\x80\x99s claims for defamation and public disclosure of private facts?\nWould the same result be due if Matthew Snyder (or his estate) had brought the claims?\n\n2.\n\nBrooker Revisited: Justice Alito calls Westboro\xe2\x80\x99s conduct a \xe2\x80\x9cverbal assault.\xe2\x80\x9d Is this purely\nrhetorical? What\xe2\x80\x99s the minimum change you could make to the facts that would provide\nSnyder with a viable assault claim?\n\n3.\n\nThe Epic: The Court tells us that deciding whether speech is of public or private concern\nrequires examining the \xe2\x80\x9ccontent, form, and context\xe2\x80\x9d of that speech. In an intriguing\nexchange buried in the footnotes, Chief Justice Roberts and Justice Alito spar over the\nrelevance of the \xe2\x80\x9cepic\xe2\x80\x9d posted on Westboro\xe2\x80\x99s website. This epic, titled \xe2\x80\x9cThe Burden of\nMarine Lance Cpl. Matthew A. Snyder. The Visit of Westboro Baptist Church to Help\nthe Inhabitants of Maryland Connect the Dots!,\xe2\x80\x9d addressed the Snyders directly: \xe2\x80\x9cGod\nblessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew. He was\nan arrow in your quiver! In thanks to God for the comfort the child could bring you, you\nhad a DUTY to prepare that child to serve the LORD his GOD\xe2\x80\x94PERIOD! You did JUST\nTHE OPPOSITE\xe2\x80\x94you raised him for the devil\xe2\x80\xa6. Albert and Julie RIPPED that body\napart and taught Matthew to defy his Creator, to divorce, and to commit adultery. They\ntaught him how to support the largest pedophile machine in the history of the entire\nworld, the Roman Catholic monstrosity. Every dime they gave the Roman Catholic\nmonster they condemned their own souls\xe2\x80\xa6. Then after all that they sent him to fight\nfor the United States of Sodom, a filthy country that is in lock step with his evil, wicked,\nand sinful manner of life, putting him in the cross hairs of a God that is so mad He has\nsmoke coming from his nostrils and fire from his mouth! How dumb was that?\xe2\x80\x9d Imagine\nthat the Snyders had sued based solely on Westboro\xe2\x80\x99s publication of the epic, not their\nfuneral protest. Would their actions satisfy the elements of intentional infliction of\nemotional distress? Did the epic constitute speech of public or private concern? What\nother facts might you want to know? Would it matter, for example, that Westboro posted\nthe epic on its publicly accessible website instead of its invitation-only Facebook group?\nDo the all-caps portions help or hurt the Snyders? And does the binary public\xe2\x80\x93private\nstandard make any sense now that the internet allows us freely to publish lengthy prose\nto the world\xe2\x80\x94prose that might blend \xe2\x80\x9cprivate\xe2\x80\x9d commentary about little-known people\nwith \xe2\x80\x9cpublic\xe2\x80\x9d discourse on weighty political issues?\n\nB. Negligent Infliction of Emotional Distress\nThe following case discusses suicide and sexual assault.\nBEUL v. ASSE INTERNATIONAL, INC.\nUnited States Court of Appeals for the Seventh Circuit (2000)\nPosner, Judge:\n\n\xc3\xa3\n\nIn this diversity suit for negligence, governed (so far as\nthe substantive issues are concerned) by Wisconsin law, the\njury returned a verdict finding that plaintiff Kristin Beul\xe2\x80\x99s\ndamages were $1,100,000 and that she was 41 percent\nresponsible for them; in accordance with the verdict,\njudgment was entered against defendant ASSE\nInternational for $649,000 (59 percent of $1.1 million)\xe2\x80\xa6.\n\n\xc3\xa3\n\nRussell Street, Foreign Exchange (CC BY-SA 2.0).\n\n\x0cCASES & CRITIQUE\n\n277\n\nThe defendant is a nonprofit corporation that operates international student exchange\nprograms. For a fee of $2,000 it placed Kristin, a 16-year-old German girl who wanted to spend a\nyear in the United States, with the Bruce family of Fort Atkinson, Wisconsin. The family, which\nconsisted of Richard Bruce, age 40, his wife, and their 13-year-old daughter, had been selected by\nMarianne Breber, the defendant\xe2\x80\x99s Area Representative in the part of the state that includes Fort\nAtkinson. Breber is described in the briefs as a \xe2\x80\x9cvolunteer,\xe2\x80\x9d not an employee; the only payment she\nreceives from ASSE is reimbursement of her expenses. Nothing in the appeal, however, turns either\non her \xe2\x80\x9cvolunteer\xe2\x80\x9d status or on ASSE\xe2\x80\x99s nonprofit status. Charities are not immune from tort liability\nin Wisconsin, and ASSE does not deny that if Breber was negligent it is liable for her negligence\nunder the doctrine of respondeat superior, even though she was not an employee of ASSE. The\ndoctrine is nowadays usually described as making an employer liable for the torts of his employees\ncommitted within the scope of their employment, but strictly speaking the liability is that of a\n\xe2\x80\x9cmaster\xe2\x80\x9d for the torts of his \xe2\x80\x9cservant\xe2\x80\x9d and it extends to situations in which the servant is not an\nemployee, provided that he is acting in a similar role, albeit as a volunteer.\nThere is also no argument that the contract between ASSE and Kristin\xe2\x80\x99s parents is the exclusive\nsource of ASSE\xe2\x80\x99s legal duties to Kristin. Negligence in the performance of a contract that foreseeably\nresults in personal injury, including as here emotional distress, is actionable under tort law\xe2\x80\xa6 [T]ort\nlaw is a field largely shaped by the special considerations involved in personal-injury cases, as\ncontract law is not. Tort doctrines are, therefore, prima facie more suitable for the governance of\nsuch cases than contract doctrines are even when victim and injurer are linked by contract.\nAs the sponsor of a foreign exchange student, ASSE was subject to regulations of the United\nStates Information Agency that require sponsors to train their agents, \xe2\x80\x9cmonitor the progress and\nwelfare of the exchange visit,\xe2\x80\x9d and require a \xe2\x80\x9cregular schedule of personal contact with the student\nand host family.\xe2\x80\x9d These [federal] regulations are intended for the protection of the visitor, and the\njury was therefore properly instructed, under standard tort principles not challenged by ASSE, that\nit could consider the violation of them as evidence of negligence. There is no argument that the\nregulations create a private federal right of suit that would allow the plaintiffs to sue ASSE under the\nfederal-question jurisdiction of the federal courts (and we have found no case suggesting there is\nsuch a right), or that Wisconsin is legally obligated to use the regulations to define the duty of care\nof a sponsor sued under state tort law\xe2\x80\xa6. But the district court was entitled to conclude that a state\ncourt would look to the regulations for evidence of the sponsor\xe2\x80\x99s duty of care. Courts in tort cases\ncommonly take their cues from statutes or regulations intended to protect the safety of the class to\nwhich the tort plaintiff belongs.\nASSE is also a member of a private association of sponsors of foreign exchange students, the\nCouncil on Standards for International Educational Travel, which requires members to \xe2\x80\x9cmaintain\nthorough, accurate, and continual communication with host families and school authorities.\xe2\x80\x9d A jury\ncould reasonably consider the Council\xe2\x80\x99s statement as additional evidence of the standard of care\napplicable to sponsors and it could also accept the plaintiff\xe2\x80\x99s argument that due care required Breber\nto try to develop rapport with Kristin so that Kristin would trust and confide in her and so that\nBreber could pick up any signals of something amiss that Kristin might be embarrassed to mention\nunless pressed.\nKristin Beul arrived in Wisconsin from Germany on September 7, 1995, and was met at the\nairport by Richard Bruce and his daughter. Marianne Breber did not go to the airport to meet\nKristin. In fact, apart from a brief orientation meeting at a shopping mall in September with Kristin\nand one other foreign exchange student, at which Breber gave Kristin her phone number, she didn\xe2\x80\x99t\nmeet with Kristin until January 21 of the following year\xe2\x80\x94under unusual circumstances, as we\xe2\x80\x99ll see.\nShe did call the Bruce home a few times during this period and spoke briefly with Kristin once or\ntwice, but she made no effort to make sure that Kristin was alone when they spoke. She would ask\nin these calls how Kristin was doing and Kristin would reply that everything was fine. Breber did not\ntalk to Mrs. Bruce, who would have told her that she was concerned that her husband seemed to be\ndeveloping an inappropriate relationship with Kristin.\nKristin had led a sheltered life in Germany. She had had no sexual experiences at all and in fact\nhad had only two dates in her life. On November 17, 1995, Richard Bruce, who weighed almost 300\npounds and who was alone at home at the time except for Kristin, came into the loft area in which\n\n\x0c278\n\nTORT LAW\n\nshe slept and raped her. This was the start of a protracted sexual relationship. In the months that\nfollowed, Bruce frequently would call the high school that Kristin was attending and report her ill.\nThen, with Mrs. Bruce off at work and the Bruce\xe2\x80\x99s daughter at school, Bruce would have sex with\nKristin. By February 22, Kristin had been absent 27 days from school. Bruce brandished a gun and\ntold Kristin that he would kill himself if she told anyone what they were doing together.\nCuriously, in January Bruce and Kristin called Marianne Breber and told her that Mrs. Bruce\nappeared to be jealous of the time that her husband was spending with Kristin. Bruce invited Breber\nto dinner on January 21. Breber did not meet privately with either Kristin or Mrs. Bruce on that\noccasion, and she observed nothing untoward. In February, however, Mrs. Bruce told Breber that\nshe and her husband were getting divorced, and Breber forthwith found another host family to take\nin Kristin. Kristin didn\xe2\x80\x99t want to leave the Bruce home, but on February 22 Breber came with a\nsheriff\xe2\x80\x99s deputy to remove Kristin. The deputy asked Kristin in the presence of Richard Bruce and\nhis daughter whether there was any inappropriate sexual activity between Richard and Kristin, and\nKristin answered \xe2\x80\x9cno.\xe2\x80\x9d The same day Breber, upon calling Kristin\xe2\x80\x99s school to tell them that Kristin\nwould be out for a few days in connection with her change of residence, learned for the first time of\nKristin\xe2\x80\x99s many absences.\nKristin lived with Breber for a few days between host families, but Breber didn\xe2\x80\x99t use the occasion\nto inquire about any possible sexual relationship between Kristin and Bruce. Breber told the new\nhost family that Kristin was not to contact Bruce for a month, but she did not tell Bruce not to have\nany contact with Kristin. They continued to correspond and talk on the phone. Kristin had decided\nthat she was in love with Bruce and considered herself engaged to him.\nIn April, Mrs. Bruce discovered some of Kristin\xe2\x80\x99s love letters and alerted the authorities. A\nsheriff\xe2\x80\x99s deputy interviewed Bruce. The next day Bruce, who had committed a misdemeanor by\nhaving sex with a 16 year old, killed himself, leaving a note expressing fear of jail. It is undisputed\nthat the events culminating in Bruce\xe2\x80\x99s suicide inflicted serious psychological harm on Kristin; the\njury\xe2\x80\x99s assessment of her damages is not claimed to be excessive.\nThe defendant argues that it was entitled to judgment as a matter of law, or alternatively to a new\ntrial because of trial error. The first argument divides into three: there was insufficient proof of a\ncausal relationship between the defendant\xe2\x80\x99s negligence in failing to keep closer tabs on Kristin Beul\nand her sexual involvement with Bruce culminating in his suicide; Bruce\xe2\x80\x99s criminal activity was the\nsole, or superseding, cause of her harm; and the harm was too \xe2\x80\x9cremote\xe2\x80\x9d in a legal sense from the\ndefendant\xe2\x80\x99s lack of due care to support liability.\nSince Kristin was determined to conceal her relationship with Bruce, the defendant argues, no\namount of care by Breber would have warded off the harm that befell Kristin; she would have\nstonewalled, however pertinacious Breber had been in her questioning. This is conceivable, and if\ntrue would let ASSE off the hook; if there was no causal relation between the defendant\xe2\x80\x99s negligence\nand the plaintiff\xe2\x80\x99s harm, there was no tort.\nBut it is improbable, and the jury was certainly not required to buy the argument. Suppose Breber\nhad inquired from the school how Kristin was doing\xe2\x80\x94a natural question to ask about a foreigner\nplunged into an American high school. She would have learned of the numerous absences, would\n(if minimally alert) have inquired about them from Kristin, and would have learned that Kristin had\nbeen \xe2\x80\x9cill\xe2\x80\x9d and that Richard Bruce had been home and taken care of her. At that point the secret\nwould have started to unravel.\nAs for the argument that Bruce\xe2\x80\x99s misconduct was so egregious as to let ASSE off the hook, it is\ntrue that the doctrine of \xe2\x80\x9csuperseding cause\xe2\x80\x9d can excuse a negligent defendant. Suicide by a sane\nperson, unless clearly foreseeable by the tortfeasor, for example a psychiatrist treating a depressed\nperson, is a traditional example of the operation of the doctrine. So if Bruce\xe2\x80\x99s boss had refused him\na raise and Bruce had responded by killing himself, the boss even if somehow negligent in failing to\ngive him the raise would not be considered the legal cause of the death. Or if through the carelessness\nof the driver a truck spilled a toxic substance and a passerby scraped it up and poisoned his motherin-law with it, the driver would not be liable to the mother-in-law\xe2\x80\x99s estate; the son-in-law\xe2\x80\x99s criminal\nact would be deemed a superseding cause.\nAnimating the doctrine is the idea that it is unreasonable to make a person liable for such\nimprobable consequences of negligent activity as could hardly figure in his deciding how careful he\n\n\x0cCASES & CRITIQUE\n\n279\n\nshould be. The doctrine is not applied, therefore, when the duty of care claimed to have been violated\nis precisely a duty to protect against ordinarily unforeseeable conduct, as in our earlier example of a\npsychiatrist treating depression. The existence of the duty presupposes a probable, therefore a\nforeseeable, consequence of its breach. (All that \xe2\x80\x9cforeseeable\xe2\x80\x9d means in tort law is probable ex ante,\nthat is, before the injury that is the basis of the tort suit.) Thus a hospital that fails to maintain a\ncareful watch over patients known to be suicidal is not excused by the doctrine of superseding cause\nfrom liability for a suicide, any more than a zoo can escape liability for allowing a tiger to escape and\nmaul people on the ground that the tiger is the superseding cause of the mauling.\nSo Kristin\xe2\x80\x99s high school would not have been liable for the consequences of Bruce\xe2\x80\x99s sexual\nactivity with Kristin even if the school should have reported her frequent absences to Breber; the\ncriminal activities with their bizarre suicide sequel were not foreseeable by the school. But part of\nASSE\xe2\x80\x99s duty and Breber\xe2\x80\x99s function was to protect foreign girls and boys from sexual hanky-panky\ninitiated by members of host families. Especially when a teenage girl is brought to live with strangers\nin a foreign country, the risk of inappropriate sexual activity is not so slight that the organization\ncharged by the girl\xe2\x80\x99s parents with the safety of their daughter can be excused as a matter of law from\nmaking a responsible effort to minimize the risk. Sexual abuse by stepfathers is not uncommon, and\nthe husband in a host family has an analogous relationship to a teenage visitor living with the family.\nIt is true (we turn now to the issue of remoteness) that when through the negligence of an alarm\ncompany, to which ASSE in its role as protector of foreign students from the sexual attentions of\nmembers of host families might perhaps be analogized, a fire or burglary is not averted or controlled\nin time, the company is generally not liable for the consequences; the consequences are deemed too\nremote. There are two related considerations. One is that so many factors outside the alarm\ncompany\xe2\x80\x99s control determine the likelihood and consequences (whether in property loss or personal\ninjury) of a failure of its alarm to summon prompt aid on a particular occasion that the company is\nbound to lack the information that it needs to determine what level of care to take to prevent a failure\nof its system. This basis of the doctrine is the same as that of the doctrine of superseding cause. A\nharm is not foreseeable in the contemplation of the law if the injurer lacked the information he\nneeded to determine whether he must use special care to avert the harm. The second point is that\nthe alarm company is not the primary accident avoider but merely a backup, and the principal\nresponsibility for avoiding disaster lies with the victim. The points are related because both involve\nthe difficulty a backup or secondary protector against disaster has in figuring out the consequence\nof a lapse on its part. Neither point supports ASSE, which was standing in the shoes of the parents\nof a young girl living in a stranger\xe2\x80\x99s home far from her homeland and could reasonably be expected\nto exercise the kind of care that the parents themselves would exercise if they could to protect their\n16-year-old daughter from the sexual pitfalls that lie about a girl of that age in those circumstances.\nASSE assumed a primary role in the protection of the girl\xe2\x80\xa6.\nThe defendant\xe2\x80\xa6complains about the following instruction to the jury: \xe2\x80\x9cYou\xe2\x80\x99re instructed that\nthe law of Wisconsin does not allow a child under the age of 18 to consent to an act of intercourse.\xe2\x80\x9d\nThis was a reference to the state\xe2\x80\x99s statutory rape law, but it was not elaborated further. The jury was\ninstructed to consider the instructions as a whole and another instruction was that it was to consider\nKristin\xe2\x80\x99s comparative fault. The jury assessed that fault at 41 percent, so obviously it did not think\nthe age-of-consent instruction prevented it from considering Kristin\xe2\x80\x99s responsibility for the harm\nthat befell her as a consequence of her sexual relationship with Bruce.\nBut should the jury have been told what the age of consent is in Wisconsin and, if so, was the\ninformation conveyed to the jury in the right way? The answer to the first question is yes. The age\nof consent fixed by a state represents a legislative judgment about the maturity of girls in matters of\nsex. Eighteen is a pretty high age of consent by today\xe2\x80\x99s standards and of course the law was not fixed\nby reference to German girls; but it is nonetheless a reminder that teenage children are not\nconsidered fully responsible in sexual matters, and this was something relevant to the jury\xe2\x80\x99s\nconsideration of Kristin\xe2\x80\x99s share of responsibility for the disaster. The criminal law is frequently used\nto set a standard of care for civil tort cases\xe2\x80\x94\xe2\x80\xa6and that was essentially the use made of it here. It\nwould have been error to instruct the jury that because Kristin was below the age of consent her\ncomparative fault must be reckoned at zero. That would have given too much force to the criminal\nstatute in this civil case, for the statute cannot be considered a legislative judgment that minors are\n\n\x0c280\n\nTORT LAW\n\nutterly incapable of avoiding becoming ensnared in sexual relationships. A comparative-fault rule,\nmoreover, requires gradations of victim responsibility that are alien to the normal criminal\nprohibition. Victim fault is not a defense, either partial or complete, to criminal liability. It is not a\ndefense to a charge of rape that, for example, the victim was dressed provocatively, or drunk, or\notherwise careless in the circumstances in which the rape occurred.\nIt would have been better, though, if the jury had been told how it should take the age of consent\ninto account in their deliberations. It should have been told that in deciding how much responsibility\nto assign to Kristin for the events that gave rise to the harm for which she was suing, it could consider\nthat the state had made a judgment that girls below the age of 18 should be protected by the criminal\nlaw from sexual activity even if they agree to it. As it was, the jury was left to tease out the relation\nbetween the age-of-consent instruction and the comparative-fault instruction for itself. But we\ncannot think that it was other than a harmless error. Indeed, we are surprised that the jury assigned\nso large a responsibility to this young foreign girl virtually abandoned by the agency that was\nstanding in for her parents. The jury verdict was rather favorable to the defendant than otherwise\xe2\x80\xa6.\n1.\n\nQUESTIONS\nFast Eddie\xe2\x80\x99s Revisited: Why does Judge Posner think that Kristin\xe2\x80\x99s school wouldn\xe2\x80\x99t also\nbe liable for negligence? Is it a matter of duty or causation, or both?\n\n2.\n\nCausation Complexities: How are both components of the causation element satisfied\nhere? Do causation concerns explain why Kristin\xe2\x80\x99s claim primarily rests on the\nemotional injury she suffered in 1996, rather than any bodily injury she might have\nexperienced from the sexual assault in 1995?\n\n3.\n\nVictimization and Victim Blaming: Judge Posner remarks that it\xe2\x80\x99s \xe2\x80\x9cnot a defense to a\ncharge of rape that, for example, the victim was dressed provocatively, or drunk, or\notherwise careless in the circumstances in which the rape occurred.\xe2\x80\x9d Though he\xe2\x80\x99s\ndiscussing criminal liability in that particular sentence, what might he be implying about\nhow these facts could be relevant in determining tort liability? Do you agree? Judge\nPosner also repeatedly mentions that Kristin was a \xe2\x80\x9cforeign\xe2\x80\x9d girl. Is that relevant?\nWAUBE v. WARRINGTON\nSupreme Court of Wisconsin (1935)\n\nWickhem, Justice:\n\n\xc3\xa3\n\n[While Susie Waube looked out of her window and\nwatched her daughter Dolores cross the road, she witnessed\ndefendant Amber Warrington negligently run over Dolores,\nkilling the child. According to the complaint, Susie was\nalready frail at the time of the accident and died two weeks\nlater, in part because of her anguish. Plaintiff, Susie\xe2\x80\x99s husband,\nbrought a survival action against Amber Warrington, Amber\xe2\x80\x99s\nhusband who owned the car, and the car\xe2\x80\x99s insurer. The action\nproceeded on the theory that Susie would have been able to\nrecover compensation for her anguish via a cause of action for\nnegligent infliction of emotional distress. The trial court\ngranted defendant\xe2\x80\x99s motion to dismiss, and the Court of the\nAppeals reversed. We now reverse and remand.]\xe2\x80\xa6\n[T]he question presented is whether the mother of a child who, although not put in peril or fear\nof physical impact, sustains the shock of witnessing the negligent killing of her child, may recover\nfor physical injuries caused by such fright or shock.\nThe problem must be approached at the outset from the view-point of the duty of defendant and\nthe right of plaintiff, and not from the view-point of proximate cause. The right of the mother to\n\xc3\xa3\n\nAphrodite, Despair (CC BY-NC-ND 2.0).\n\n\x0cCASES & CRITIQUE\n\n281\n\nrecover must be based, first, upon the establishment of a duty on the part of defendant so to conduct\nherself with respect to the child as not to subject the mother to an unreasonable risk of shock or\nfright, and, second, upon the recognition of a legally protected right or interest on the part of the\nmother to be free from shock or fright occasioned by the peril of her child. It is not enough to find\na breach of duty to the child, follow the consequences of such breach as far as the law of proximate\ncause will permit them to go, and then sustain a recovery for the mother if a physical injury to her\nby reason of shock or fright is held not too remote.\nUpon this point we adopt and follow the doctrine of Palsgraf v. Long Island R.R. Co., 162 N.E.\n99 (N.Y. 1928)\xe2\x80\xa6:\nNegligence is not actionable unless it involves the invasion of a legally protected\ninterest, the violation of a right\xe2\x80\xa6. The plaintiff sues in her own right for a wrong\npersonal to her, and not as the vicarious beneficiary of a breach of duty to\nanother\xe2\x80\xa6. The passenger far away, if the victim of a wrong at all, has a cause of\naction, not derivative, but original and primary. His claim to be protected against\ninvasion of his bodily security is neither greater nor less because the act resulting\nin the invasion is a wrong to another far removed\xe2\x80\xa6.\nThe right of a plaintiff to recover damages for nervous shock caused by negligence without actual\nimpact has had an interesting history. In Victoria Railways Commissioners v. Coultas, 13 A.C. 222\n(1888), it was held that plaintiff was not entitled to recover such damages\xe2\x80\xa6. This became the\nprevailing doctrine in this country. This doctrine, however, was repudiated in a number of\njurisdictions, including Wisconsin, in situations where fright without impact produced physical\ninjuries\xe2\x80\xa6. [Courts in Wisconsin and elsewhere have now held] that in order to give rise to a right\nof action grounded on negligent conduct, the emotional distress or shock must be occasioned by\nfear of personal injury to the person sustaining the shock, and not fear of injury to his property or\nto the person of another.\nThus it may be said that the doctrine most favorable to plaintiff is not sufficiently broad to entitle\nhim to recover. The question presented is whether there should be an extension of the rule to cases\nwhere defendant\xe2\x80\x99s conduct involves merely an unreasonable risk of causing harm to the child or\nspouse of the person sustaining injuries through fright or shock\xe2\x80\xa6.\nThe only case squarely dealing with this problem is Hambrook v. Stokes Bros., 1 K.B. 141 (1925).\n[There, the defendant\xe2\x80\x99s employee parked the defendant\xe2\x80\x99s truck at the top of a hill without taking\nreasonable care to ensure it would not roll away. It did roll and ran over the plaintiff\xe2\x80\x99s daughter while\nshe was walking to school. The plaintiff was nearby but not endangered herself. She soon learned\nthat a young girl had been run over and, upon arriving at the hospital, discovered it was her\ndaughter. The court determined that plaintiff \xe2\x80\x9csustained a severe shock and consequent physical\ninjuries from which she died.\xe2\x80\x9d]\xe2\x80\xa6 Viewing the matter from the standpoint of proximate cause rather\nthan duty, the court held that\xe2\x80\xa6defendant ought to have anticipated that if the unattended truck ran\ndown this narrow street it might terrify some woman to such an extent, through fear of some\nimmediate bodily injury to herself, that she would receive a mental shock with resultant physical\ninjuries, and that defendant ought also to have anticipated that such a shock might result from the\nperil to the child of such a woman.\nWhile the majority, mistakenly, as it seems to us, approach this problem from the standpoint of\nproximate cause, the dissenting opinion of Sargant, L.J., approaches it from the standpoint of duty.\nThe dissenting opinion concedes that since it was defendant\xe2\x80\x99s duty to exercise due care in the\nmanagement of his vehicle so as to avoid physical injury to those on or near the highway, this duty\ncannot be limited to physical injuries caused by actual physical impact. The dissenting opinion,\nhowever, states that\xe2\x80\xa6\xe2\x80\x9cit would be a considerable and unwarranted extension of the duty of owners\nof vehicles towards others in or near the highway, if it were held to include an obligation not to do\nanything to render them liable to harm through nervous shock caused by the sight or apprehension\nof damage to third persons.\xe2\x80\x9d The dissenting opinion concludes that there is no sound reason for\nerecting an exception in favor of the mother of a child, and points out that once the defendant\xe2\x80\x99s duty\nis held to extend to those outside the field of physical peril, a doctrine is stated to which no rational\nboundaries can be erected\xe2\x80\xa6.\n\n\x0c282\n\nTORT LAW\n\nFundamentally, defendant\xe2\x80\x99s duty was to use ordinary care to avoid physical injury to those who\nwould be put in physical peril, as that term is commonly understood, by conduct on his part falling\nshort of that standard. It is one thing to say that as to those who are put in peril of physical impact,\nimpact is immaterial if physical injury is caused by shock arising from the peril. It is the foundation\nof cases holding to this liberal ruling, that the person affrighted or sustaining shock was actually put\nin peril of physical impact, and under these conditions it was considered immaterial that the physical\nimpact did not materialize. It is quite another thing to say that those who are out of the field of\nphysical danger through impact shall have a legally protected right to be free from emotional distress\noccasioned by the peril of others, when that distress results in physical impairment. The answer to\nthis question cannot be reached solely by logic, nor is it clear that it can be entirely disposed of by a\nconsideration of what the defendant ought reasonably to have anticipated as a consequence of his\nwrong. The answer must be reached by balancing the social interests involved in order to ascertain\nhow far defendant\xe2\x80\x99s duty and plaintiff\xe2\x80\x99s right may justly and expediently be extended. It is our\nconclusion that they can neither justly nor expediently be extended to any recovery for physical\ninjuries sustained by one out of the range of ordinary physical peril as a result of the shock of\nwitnessing another\xe2\x80\x99s danger. Such consequences are so unusual and extraordinary, viewed after the\nevent, that a user of the highway may be said not to subject others to an unreasonable risk of them\nby the careless management of his vehicle. Furthermore, the liability imposed by such a doctrine is\nwholly out of proportion to the culpability of the negligent tort-feasor, would put an unreasonable\nburden upon users of the highway, open the way to fraudulent claims, and enter a field that has no\nsensible or just stopping point.\nIt was recognized by the court in the Hambrook Case that had the mother there merely been told\nof the injury to her child, instead of having been virtually a witness to the transaction, there would\nhave been no liability. The court thus selected at least one arbitrary boundary for the\nextension\xe2\x80\xa6. [I]f the mother may recover, why not a child whose shock was occasioned by the peril\nof the mother? It is not necessary to multiply these illustrations. They can be made as numerous as\nthe varying degrees of human relationship, and they shade into each other in such a way as to leave\nno definite or clear-cut stopping place for the suggested doctrine, short of a recovery for every person\nwho has sustained physical injuries as a result of shock or emotional distress by reason of seeing or\nhearing of the peril or injury of another. No court has gone this far, and we think no court should\ngo this far. It is our view that fairness and justice, as well as expediency, require the defendant\xe2\x80\x99s duty\nto be defined as heretofore stated\xe2\x80\xa6. Human wrong-doing is seldom limited in its injurious effects\nto the immediate actors in a particular event. More frequently than not, a chain of results is set up\nthat visits evil consequences far and wide. While from the standpoint of good morals and good\ncitizenship the wrong-doer may be said to violate a duty to those who suffer from the wrong, the law\nfinds it necessary, for reasons heretofore considered, to attach practical and just limits to the legal\nconsequences of the wrongful act\xe2\x80\xa6.\nThe allegations in plaintiff\xe2\x80\x99s complaint do not bring the interest of Susie Waube within the field\nof legally protected rights\xe2\x80\xa6. Order reversed, and cause remanded with directions to sustain the\ndemurrer.\n1.\n2.\n\nQUESTIONS\nPalsgraf Revisited: Why does the court draw from Palsgraf? What\xe2\x80\x99s its relevance here?\nThe Buck Stops Here: Despite acknowledging previous expansions of negligence\nliability in similar cases, the court offers multiple reasons to explain its refusal to \xe2\x80\x9cbring\nthe interest of Susie Waube within the field of legally protected rights.\xe2\x80\x9d What are those\nreasons? Are you persuaded?\n\n\x0cDILLON v. LEGG\nSupreme Court of California (1968)\nTobriner, Justice:\n\n\xc3\xa3\n\nThat the courts should allow recovery to a mother who\nsuffers emotional trauma and physical injury from\nwitnessing the infliction of death or injury to her child for\nwhich the tortfeasor is liable in negligence would appear\nto be a compelling proposition. As Prosser points out, \xe2\x80\x9cAll\nordinary human feelings are in favor of her action against\nthe negligent defendant. If a duty to her requires that she\nherself be in some recognizable danger, then it has\nproperly been said that when a child is endangered, it is\nnot beyond contemplation that its mother will be\nsomewhere in the vicinity, and will suffer serious shock.\xe2\x80\x9d\nNevertheless, past American decisions have barred the\nmother\xe2\x80\x99s recovery. Refusing the mother the right to take\nher case to the jury, these courts ground their position on an alleged absence of a required \xe2\x80\x9cduty\xe2\x80\x9d of\ndue care of the tortfeasor to the mother. Duty, in turn, they state, must express public policy; the\nimposition of duty here would work disaster because it would invite fraudulent claims and it would\ninvolve the courts in the hopeless task of defining the extent of the tortfeasor's liability\xe2\x80\xa6. We have\nconcluded that feared dangers excuses the frustration of the natural justice upon which the mother\xe2\x80\x99s\nclaim rests\xe2\x80\xa6.\n[P]laintiff\xe2\x80\x99s first cause of action alleged that\xe2\x80\xa6defendant\xe2\x80\x99s negligent operation of his vehicle\ncaused it to \xe2\x80\x9ccollide with the deceased Erin Lee Dillon resulting in injuries to decedent which\nproximately resulted in her death.\xe2\x80\x9d Plaintiff, as the mother of the decedent, brought an action for\ncompensation for the loss. Plaintiff\xe2\x80\x99s second cause of action alleged that she, Margery M. Dillon,\n\xe2\x80\x9cwas in close proximity to the collision and personally witnessed said collision.\xe2\x80\x9d She further alleged\nthat \xe2\x80\x9cbecause of the negligence of defendants\xe2\x80\xa6plaintiff sustained great emotional disturbance and\nshock and injury to her nervous system\xe2\x80\x9d which caused her great physical and mental pain and\nsuffering\xe2\x80\xa6. [Plaintiff\xe2\x80\x99s third cause of action asserted a claim for negligent infliction of emotional\ndistress on behalf of Erin\xe2\x80\x99s sister Cheryl, who was alleged to have been standing nearby when Erin\nwas hit.]\xe2\x80\xa6\n[Defendant] moved for judgment on the pleadings, contending that \xe2\x80\x9cNo cause of action is stated\nin that allegation that plaintiff sustained emotional distress, fright or shock induced by apprehension\nof negligently caused danger or injury or the witnessing of negligently caused injury to a third\nperson. Even where a child, sister or spouse is the object of the plaintiff\xe2\x80\x99s apprehension no cause of\naction is stated, unless the complaint alleges that the plaintiff suffered emotional distress, fright or\nshock as a result of fear for his own safety.\xe2\x80\x9d The court granted a judgment on the pleadings against\nthe mother\xe2\x80\x99s count, the second cause of action, and denied it as to the sister\xe2\x80\x99s count, the third cause\nof action\xe2\x80\xa6. The trial court apparently sustained the motion for judgment on the pleadings on the\nsecond cause\xe2\x80\xa6because [Mrs. Dillon] was not within the zone of danger and denied that motion as\nto the third cause involving Cheryl because of the possibility that she was within such zone of danger\nor feared for her own safety. Thus we have before us a case that dramatically illustrates the difference\nin result flowing from the alleged requirement that a plaintiff cannot recover for emotional trauma\nin witnessing the death of a child or sister unless she also feared for her own safety because she was\nactually within the zone of physical impact\xe2\x80\xa6.\nThe case thus illustrates the fallacy of the rule that would deny recovery in the one situation and\ngrant it in the other\xe2\x80\xa6. [W]e can hardly justify relief to the sister for trauma which she suffered upon\napprehension of the child\xe2\x80\x99s death and yet deny it to the mother merely because of a happenstance\nthat the sister was some few yards closer to the accident. The instant case exposes the hopeless\nartificiality of the zone-of-danger rule\xe2\x80\xa6.\n\xc3\xa3\n\nx1klima, Woman and Grief (CC BY-ND 2.0).\n\n\x0c284\n\nTORT LAW\n\nWe turn then to an analysis of the concept of duty, which, as we have stated, has furnished the\nground for the rejection of such claims as the instant one. Normally the simple facts of plaintiff\xe2\x80\x99s\ncomplaint would establish a cause of action: the complaint alleges that defendant drove his car\n(1) negligently, as a (2) proximate result of which plaintiff suffered (3) physical injury. Proof of these\nfacts to a jury leads to recovery in damages; indeed, such a showing represents a classic example of\nthe type of accident with which the law of negligence has been designed to deal.\nThe assertion that liability must nevertheless be denied because defendant bears no \xe2\x80\x9cduty\xe2\x80\x9d to\nplaintiff begs the essential question\xe2\x80\x94whether the plaintiff\xe2\x80\x99s interests are entitled to legal protection\nagainst the defendant\xe2\x80\x99s conduct. Duty is a shorthand statement of a conclusion, rather than an aid\nto analysis in itself. But it should be recognized that \xe2\x80\x9cduty\xe2\x80\x9d is not sacrosanct in itself, but only an\nexpression of the sum total of those considerations of policy which lead the law to say that the\nparticular plaintiff is entitled to protection\xe2\x80\xa6.\nWe have noted that this negation of duty [in cases similar to this one] emanates from the twin\nfears that courts will be flooded with an onslaught of (1) fraudulent and (2) indefinable claims. We\nshall point out why we think neither fear justified.\n1. This court in the past has rejected the argument that we must deny recovery upon a legitimate\nclaim because other fraudulent ones may be urged.\nThe denial of \xe2\x80\x9cduty\xe2\x80\x9d in the instant situation rests upon the prime hypothesis that allowance of\nsuch an action would lead to successful assertion of fraudulent claims. The rationale apparently\nassumes that juries, confronted by irreconcilable expert medical testimony, will be unable to\ndistinguish the deceitful from the bona fide. The argument concludes that only a per se rule denying\nthe entire class of claims that potentially raises this administrative problem can avoid this danger.\nIn the first instance, the argument proceeds from a doubtful factual assumption. Whatever the\npossibilities of fraudulent claims of physical injury by disinterested spectators of an accident, a\nquestion not in issue in this case, we certainly cannot doubt that a mother who sees her child killed\nwill suffer physical injury from shock\xe2\x80\xa6. In the second instance, and more fundamentally, the\npossibility that fraudulent assertions may prompt recovery in isolated cases does not justify a\nwholesale rejection of the entire class of claims in which that potentiality arises. The contention that\nthe rule permitting the maintenance of the action would be impractical to administer is but an\nargument that the courts are incapable of performing their appointed tasks, a premise which has\nfrequently been rejected\xe2\x80\xa6. The possibility that some fraud will escape detection does not justify an\nabdication of the judicial responsibility to award damages for sound claims\xe2\x80\xa6.\nIndeed, we doubt that the problem of the fraudulent claim is substantially more pronounced in\nthe case of a mother claiming physical injury resulting from seeing her child killed than in other\nareas of tort law in which the right to recover damages is well established in California. For\nexample, a plaintiff claiming that fear for his own safety resulted in physical injury makes out a well\nrecognized case for recovery.1 Moreover, damages are allowed for \xe2\x80\x9cmental suffering,\xe2\x80\x9d a type of\ninjury, on the whole, less amenable to objective proof than the physical injury involved here; the\nmental injury can be in aggravation of, or \xe2\x80\x9cparasitic to,\xe2\x80\x9d an established tort. In fact, fear for another,\neven in the absence of resulting physical injury, can be part of these parasitic damages. And\nemotional distress, if inflicted intentionally, constitutes an independent tort. The danger of\nplaintiffs\xe2\x80\x99 fraudulent collection of damages for nonexistent injury is at least as great in these\nexamples as in the instant case.\nIn sum, the application of tort law can never be a matter of mathematical precision. In terms of\ncharacterizing conduct as tortious and matching a money award to the injury suffered as well as in\nfixing the extent of injury, the process cannot be perfect\xe2\x80\xa6. [D]efendants have [long] argued that\n\n1\n\xe2\x80\xa6[I]t is incongruous and somewhat revolting to sanction recovery for the mother if she suffers shock from fear for her\nown safety and to deny it for shock from the witnessed death of her own daughter. To the layman such a ruling must appear\nincomprehensible; for the courts to rely upon self-contradictory legalistic abstractions to justify it is indefensible. We concur\nwith Judge Magruder\xe2\x80\x99s observation in 49 Harvard Law Review 1033: \xe2\x80\x9cOnce accepting the view that a plaintiff threatened with\nan injurious impact may recover for bodily harm resulting from shock without impact, it is easy to agree with Atkin, L.J.,\nHambrook v. Stokes Bros., 1 K.B. 141 (1925), that to hinge recovery on the speculative issue whether the parent was shocked\nthrough fear for herself or for her children \xe2\x80\x98would be discreditable to any system of jurisprudence.\xe2\x80\x99\xe2\x80\x9d\n\n\x0cCASES & CRITIQUE\n\n285\n\nplaintiffs\xe2\x80\x99 claims of injury from emotional trauma might well be fraudulent. Yet we cannot let the\ndifficulties of adjudication frustrate the principle that there be a remedy for every substantial wrong.\n2. The alleged inability to fix definitions for recovery on the different facts of future cases does not\njustify the denial of recovery on the specific facts of the instant case; in any event, proper guidelines can\nindicate the extent of liability for such future cases.\nIn order to limit the otherwise potentially infinite liability which would follow every negligent\nact, the law of torts holds defendant amenable only for injuries to others which to defendant at the\ntime were reasonably foreseeable. In the absence of overriding policy considerations foreseeability\nof risk is of primary importance in establishing the element of duty. As a classic opinion states: \xe2\x80\x9cThe\nrisk reasonably to be perceived defines the duty to be obeyed.\xe2\x80\x9d Palsgraf v. Long Island R.R. Co., 162\nN.E. 99 (N.Y. 1928). Defendant owes a duty, in the sense of a potential liability for damages, only\nwith respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous,\nand hence negligent, in the first instance\xe2\x80\xa6.2\nSince the chief element in determining whether defendant owes a duty or an obligation to\nplaintiff is the foreseeability of the risk, that factor will be of prime concern in every case. Because it\nis inherently intertwined with foreseeability such duty or obligation must necessarily be adjudicated\nonly upon a case-by-case basis. We cannot now predetermine defendant\xe2\x80\x99s obligation in every\nsituation by a fixed category; no immutable rule can establish the extent of that obligation for every\ncircumstance of the future. We can, however, define guidelines which will aid in the resolution of\nsuch an issue as the instant one.\nWe note, first, that we deal here with a case in which plaintiff suffered a shock which resulted in\nphysical injury and we confine our ruling to that case. In determining, in such a case, whether\ndefendant should reasonably foresee the injury to plaintiff, or, in other terminology, whether\ndefendant owes plaintiff a duty of due care, the courts will take into account such factors as the\nfollowing: (1) Whether plaintiff was located near the scene of the accident as contrasted with one\nwho was a distance away from it. (2) Whether the shock resulted from a direct emotional impact\nupon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted\nwith learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim\nwere closely related, as contrasted with an absence of any relationship or the presence of only a\ndistant relationship.\nThe evaluation of these factors will indicate the degree of the defendant\xe2\x80\x99s foreseeability:\nobviously defendant is more likely to foresee that a mother who observes an accident affecting her\nchild will suffer harm than to foretell that a stranger witness will do so. Similarly, the degree of\nforeseeability of the third person\xe2\x80\x99s injury is far greater in the case of his contemporaneous\nobservance of the accident than that in which he subsequently learns of it. The defendant is more\nlikely to foresee that shock to the nearby, witnessing mother will cause physical harm than to\nanticipate that someone distant from the accident will suffer more than a temporary emotional\nreaction. All these elements, of course, shade into each other; the fixing of obligation, intimately tied\ninto the facts, depends upon each case.\nIn light of these factors the court will determine whether the accident and harm was reasonably\nforeseeable. Such reasonable foreseeability does not turn on whether the particular plaintiff as an\nindividual would have in actuality foreseen the exact accident and loss; it contemplates that courts,\non a case-to-case basis, analyzing all the circumstances, will decide what the ordinary man under\nsuch circumstances should reasonably have foreseen. The courts thus mark out the areas of liability,\nexcluding the remote and unexpected.\nIn the instant case, the presence of all the above factors indicates that plaintiff has alleged a\nsufficient prima facie case. Surely the negligent driver who causes the death of a young child may\n2\nThe concept of the zone of danger cannot properly be restricted to the area of those exposed to physical injury; it must\nencompass the area of those exposed to emotional injury. The courts, today, hold that no distinction can be drawn between\nphysical injury and emotional injury flowing from the physical injury; indeed, in the light of modern medical knowledge, any\nsuch distinction would be indefensible. As a result, in awarding recovery for emotional shock upon witnessing another\xe2\x80\x99s\ninjury or death, we cannot draw a line between the plaintiff who is in the zone of danger of physical impact and the plaintiff\nwho is in the zone of danger of emotional impact. The recovery of the one, within the guidelines set forth infra, is as much\ncompelled as that of the other.\n\n\x0c286\n\nTORT LAW\n\nreasonably expect that the mother will not be far distant and will upon witnessing the accident suffer\nemotional trauma. As Dean Prosser has stated: \xe2\x80\x9cwhen a child is endangered, it is not beyond\ncontemplation that its mother will be somewhere in the vicinity, and will suffer serious shock.\xe2\x80\x9d\nWe are not now called upon to decide whether, in the absence or reduced weight of some of the\nabove factors, we would conclude that the accident and injury were not reasonably foreseeable and\nthat therefore defendant owed no duty of due care to plaintiff. In future cases the courts will draw\nlines of demarcation upon facts more subtle than the compelling ones alleged in the complaint\nbefore us\xe2\x80\xa6.\nWe do not believe that the fear that we cannot successfully adjudicate future cases of this sort,\npursuant to the suggested guidelines, should bar recovery in an otherwise meritorious cause\xe2\x80\xa6.\n[T]he history of the [negligent infliction of emotional distress] cases does not show the development\nof a logical rule but rather a series of changes and abandonments. Upon the argument in each\nsituation that the courts draw a Maginot Line to withstand an onslaught of false claims, the cases\nhave assumed a variety of postures. At first they insisted that there be no recovery for emotional\ntrauma at all. Retreating from this position, they gave relief for such trauma only if physical impact\noccurred. They then abandoned the requirement for physical impact but insisted that the victim fear\nfor her own safety, holding that a mother could recover for fear for her children\xe2\x80\x99s safety if she\nsimultaneously entertained a personal fear for herself. They stated that the mother need only be in\nthe \xe2\x80\x9czone of danger.\xe2\x80\x9d The final anomaly would be the instant case in which the sister, who observed\nthe accident, would be granted recovery because she was in the \xe2\x80\x9czone of danger,\xe2\x80\x9d but the mother,\nnot far distant, would be barred from recovery. The successive abandonment of these positions\nexposes the weakness of artificial abstractions which bar recovery contrary to the general rules. As\nthe commentators have suggested, the problem should be solved by the application of the principles\nof tort, not by the creation of exceptions to them\xe2\x80\xa6.\n[F]or some artificial reason [ordinary principles of negligence] liability [are] alleged to be\nunworkable in the most egregious case of them all: the mother\xe2\x80\x99s emotional trauma at the witnessed\ndeath of her child. If we stop at this point, however, we must necessarily question and reject not\nmerely recovery here, but the viability of the judicial process for ascertaining liability for tortious\nconduct itself\xe2\x80\xa6. To deny recovery would be to chain this state to an outmoded rule of the 19th\ncentury which can claim no current credence. No good reason compels our captivity to an\nindefensible orthodoxy. The judgment is reversed.\nBurke, Justice, dissenting:\n\xe2\x80\xa6Every one of the arguments advanced in today\xe2\x80\x99s opinion was considered by this court and\nrejected, expressly or by fair implication, in Amaya v. Home Ice, Fuel & Supply Co., 379 P.2d 513\n(Cal. 1963)\xe2\x80\xa6. [T]he majority\xe2\x80\x99s \xe2\x80\x9cguidelines\xe2\x80\x9d are simply a restatement of those suggested earlier by\nProfessor Prosser [and] have already been discussed and expressly rejected by this court in Amaya.\nUpon analysis, their seeming certainty evaporates into arbitrariness, and inexplicable distinctions\nappear. As we asked in Amaya: What if the plaintiff was honestly mistaken in believing the third\nperson to be in danger or to be seriously injured? What if the third person had assumed the risk\ninvolved? How \xe2\x80\x9cclose\xe2\x80\x9d must the relationship be between the plaintiff and the third person? I.e., what\nif the third person was the plaintiff\xe2\x80\x99s beloved niece or nephew, grandparent, fiance, or lifelong friend,\nmore dear to the plaintiff than her immediate family? Next, how \xe2\x80\x9cnear\xe2\x80\x9d must the plaintiff have been\nto the scene of the accident, and how \xe2\x80\x9csoon\xe2\x80\x9d must shock have been felt? Indeed, what is the magic\nin the plaintiff\xe2\x80\x99s being actually present? Is the shock any less real if the mother does not know of the\naccident until her injured child is brought into her home? On the other hand, is it any less real if the\nmother is physically present at the scene but is nevertheless unaware of the danger or injury to her\nchild until after the accident has occurred? No answers to these questions are to be found in today\xe2\x80\x99s\nmajority opinion. Our trial courts, however, will not so easily escape the burden of distinguishing\nbetween litigants on the basis of such artificial and unpredictable distinctions\xe2\x80\xa6.\n[N]o fallacy or incongruity appears in the rule permitting recovery to one within the physical\nzone of danger for trauma suffered from fear of impact, but denying it to a person outside that zone.\nThe impact feared must be to oneself, and it must be an objective fear\xe2\x80\x94not merely that of an\nexcessively imaginative or timid plaintiff\xe2\x80\xa6. [T]o permit recovery by every person who might\n\n\x0cCASES & CRITIQUE\n\n287\n\nadversely feel some lingering effect of the defendant\xe2\x80\x99s conduct would throw us into \xe2\x80\x9cthe fantastic\nrealm of infinite liability.\xe2\x80\x9d Yet the majority opinion in the present case simply omits to either\nmention or discuss the injustice to California defendants flowing from such a disproportionate\nextension of their liability\xe2\x80\x94an injustice which plainly constituted a \xe2\x80\x9cprime hypothesis\xe2\x80\x9d for rejection\nof the liability sought to be imposed by the plaintiffs in Waube and in Amaya\xe2\x80\xa6.\n1.\n\nQUESTIONS\nCalifornia versus Wisconsin: In what ways is Dillon a departure from Waube?\n\n2.\n\nFantastical Negligence: Are you convinced by the majority\xe2\x80\x99s arguments for permitting\nMargery Dillon\xe2\x80\x99s claim to proceed? Are Justice Burke\xe2\x80\x99s rebuttals in dissent persuasive?\nAre we now in the \xe2\x80\x9cthe fantastic realm of infinite liability\xe2\x80\x9d?\n\n3.\n\nHighway to the Danger Zone: Was there any logic to the narrower zone-of-danger rule?\nIs Margery\xe2\x80\x99s sister Cheryl basing her negligence claim on a meaningfully different theory\nof emotional distress than Margery?\n\n\x0c288\n\nTORT LAW\n\nAPPENDIX : ADDITIONAL MATERIALS\nA. Writing for Exams\nBy Jean Mangan, Courtney Hogan, and Thomas Kadri*\nThere are different strategies that you will use when writing an essay for an exam in law school\nor for the bar. Many law school exams consist of short answers, essays on directed topics, and \xe2\x80\x9cissuespotters.\xe2\x80\x9d In law school, issue-spotters are exams featuring a long hypothetical\xe2\x80\x94usually referred to\nas a fact pattern\xe2\x80\x94in which there are several potential claims, defenses, and/or other scenarios to be\nanalyzed under the rules you have learned in the course. When you are responding to an issuespotter question, your goal is to demonstrate to the reader (usually your professor) that you both\nknow the legal rules and understand how to apply them to a given set of facts. Depending on the\nparticular fact pattern and prompt, you might also need to tell the reader every possible way a\nsituation could resolve, often by applying the same rule and showing how your conclusion might\nchange depending on how you interpret different facts. This ability to explore the legal issues in\ndepth demonstrates your mastery of the rules and their nuances. Remember, your law professors\nassume you can regurgitate the rules, but they really want to see that you know how to apply the\nrules.\nFirst, pay careful attention to the \xe2\x80\x9ccall of the question\xe2\x80\x9d or prompt\xe2\x80\x94what the professor has asked\nyou to explain about the fact pattern. Many questions will not have a \xe2\x80\x9cright\xe2\x80\x9d answer as to whether a\ncertain claim will succeed or fail, so the best practice is typically to explain both sides of the argument\nthen commit to what you believe to be the stronger conclusion (e.g.: \xe2\x80\x9cThe judge is likely to grant the\nmotion for summary judgment in this case.\xe2\x80\x9d), unless instructions indicate otherwise or additional\nfacts are necessary to make a reasonable conclusion. To maximize the points you earn, show the\nprofessor the steps you took to reach your conclusions by using the traditional IRAC structure for\nissue-spotter answers. Exams are designed for you to demonstrate to your professor that you can\nboth find and articulate the legal Issue; identify the relevant Rule(s); conduct the appropriate\nAnalysis or application, including the consideration of counterarguments; and clearly state the\nConclusion. Put another way, for each section of your exam answer, you want to tell the professor\nwhat that particular section discusses; what past sources of law tell us about this issue; explain how\nthis rule applies to the scenario and why the rule leads to a certain outcome; and then summarize\nfor the reader the purpose of the section by restating your conclusion.\nThe primary benefits to sticking to an IRAC format are that (1) you present your thoughts in a\nlogical sequence; (2) you are more likely to include all the components needed to show your thought\nprocess; and (3) your professor will be able to read your answers easily. All three of these benefits\ncombine to create yet another benefit: you enhance your credibility with the reader.\nWhen you begin reading an issue-spotter question, I suggest going ahead and writing\nI\nR\nA\nC\ndown the page. As you come across an issue, write it next to the I. You will repeat IRAC down\nthe page for each issue you have.\nIn Torts, an \xe2\x80\x9cissue\xe2\x80\x9d is a possible legal question\xe2\x80\x94whether claim or defense\xe2\x80\x94raised by a fact\npattern and prompt. Although many fact patterns are quite long, every word has been carefully\nselected and warrants your full attention. To borrow another professor\xe2\x80\x99s metaphor, think of issuespotting as a pinball game: the fact pattern is riddled with issues, and you gain more points for each\nissue you find and discuss. To ensure you catch as many issues as possible, read the fact pattern\ncarefully and multiple times, marking up the page as much as possible. Analyze every word and keep\n* This essay was originally prepared by Jean Mangan, Courtney Hogan, and me for publication in JEAN MANGAN ET\nAL., LEGAL WRITING MANUAL (2021), https://alg.manifoldapp.org/projects/legal-writing-manual.\n\n\x0cCASES & CRITIQUE\n\n289\n\nan eye out for important relationships between parties, as well as specific indications of the parties\xe2\x80\x99\nthoughts or actions that could suggest their mindset or explain their conduct. Do not add facts to\nthe problem or make broad assumptions about facts given. If more facts are necessary, explain their\nnecessity in your analysis. In short, active reading is your best friend in a law school exam.\nFor example, say you encounter the following prompt on your Torts exam:\nEarly one Sunday morning, Arthur went over to Henry\xe2\x80\x99s house to ask to borrow\nsome eggs. When Arthur knocked on the door, Henry threw open the door, striking\nArthur in the face and giving him a bloody nose. Henry sticks his head out, sees\nArthur with blood streaming down his face, and laughs. Arthur screams, \xe2\x80\x9cI\xe2\x80\x99m going\nto go after you for everything you\xe2\x80\x99ve got!\xe2\x80\x9d Henry slams the door in his face. Can\nArthur sue Henry for his bloody nose?\nI - Can A sue H for bloody nose under a theory of battery?\nR - Battery occurs when a defendant (1) acts (2) intending to cause contact that is\n(3) harmful or offensive; and (4) harmful or offensive contact results. The contact\ndoes not have to be directly from a part of the defendant\xe2\x80\x99s body; it is enough that\nthe defendant intentionally uses an object to cause a harmful or offensive contact\nwith the plaintiff such that the contact can be attributed to the defendant.\nA - Here, we know that Henry caused a harmful contact to Arthur by swinging\nthe door open and striking Arthur in the face and injuring his nose, which means\nthat three elements of a battery claim are satisfied. What remains to be determined\nis whether Henry intended for the door to strike Arthur in the nose. On the one\nhand, the fact that Henry stuck his head out and laughed afterwards might suggest\nthat Henry meant to strike Arthur with the door; in that case, Henry would be\nliable for battery. On the other hand, if Henry did not mean to strike Arthur and\nwas actually laughing about something else, then Henry would not have had the\nintent to strike Arthur, and Henry could not be found liable for battery.\nC - Henry\xe2\x80\x99s liability for battery will depend on whether Arthur can prove Henry\nintended to open the door in a way that would strike Arthur.\n(You could then use the same format to explore whether Arthur can sue Henry under a theory\nof negligence.)\nNotice how stating the issue helps you recall the appropriate rules. Once you have stated the rule,\nyou then go through and connect a fact from the prompt to each piece of the rule. Where an\nimportant fact is unknown or ambiguous, like whether Henry had the requisite intent, that tells you\nto show how the facts could be interpreted to allow for either outcome. Then, you bring it all together\nby answering the question posed in I with the likely conclusion or the specific fact or portion of the\nrule that the outcome turns on.\nAs you are studying for your exams, practice putting your answers to practice problems in the\nIRAC format when you write out your responses. You should always try to answer the problems on\nyour own before you read the sample answer! Having to recall the information and put it in your\nown words will help make the material stick in your long-term memory, which is better both for\nyour exam-taking and for learning the material thoroughly.\n\n\x0c290\n\nTORT LAW\n\nB. Sample Exam\nPlease write clearly, concisely, and unpretentiously. Answer the questions. Part of good\nlawyering, and good exam-writing, is identifying the key resources you need to tackle a given\nproblem, so don\xe2\x80\x99t discuss irrelevant points of law that won\xe2\x80\x99t support your answer. Still, do consider\npoints that are reasonably relevant and deserving of analysis, even if you think the argument\nwouldn\xe2\x80\x99t succeed, and explain why such an argument would fail. The less colorable the point, the\nless attention you should give it. If you know case names that are on point, you may cite them, but I\ncare much more that you make the right points than that you cite controlling authority for them.\nThe exam has two parts. Part One has one question and Part Two has one question. You must\nanswer both questions. Please start your answer for each part on a new page with the titles \xe2\x80\x9cPart\nOne\xe2\x80\x9d and \xe2\x80\x9cPart Two.\xe2\x80\x9d There are word limits noted at the beginning of each part. The word limits\naren\xe2\x80\x99t the same, so pay careful attention to them. If your answer to either part exceeds the word\nlimit, I\xe2\x80\x99ll stop grading your answer well before that limit. If you write more than 600 words in Part\nOne, for instance, I\xe2\x80\x99ll grade only the first 400 words of your answer in that part. So, please don\xe2\x80\x99t\nexceed the word limit, and remember that the word limits are maximums, not minimums. A good\nanswer might not approach the limit.\nYou have three hours to work on the exam. Although you have three hours, you\xe2\x80\x99ll notice that\nthe times I\xe2\x80\x99ve recommended for each part amount to only two hours. This leaves you one hour for\nreading, outlining, and editing. Ultimately, it\xe2\x80\x99s up to you to decide how you allocate your time, but\nyou should know that the recommended times are proportional to the weight I\xe2\x80\x99ll assign each part\nwhen grading. As the recommended times suggest, the parts aren\xe2\x80\x99t weighted evenly.\nNow, take a deep breath and give it your best shot. Good luck!\nPart One (30 minutes, 600 words)\nA wise law professor once said: \xe2\x80\x9cTort law sometimes endorses and entrenches social norms,\nwhile sometimes it undermines and challenges them.\xe2\x80\x9d Pick one topic of tort law that we\xe2\x80\x99ve studied\xe2\x80\x94\na particular tort, element, defense, doctrine, or concept\xe2\x80\x94and discuss how that topic might relate to\nthe professor\xe2\x80\x99s words.\nPart Two (90 minutes, 2400 words)\nTensions were running high in the town of Athenia. After a bitterly contested race in November\nin which no candidate won a majority of votes, the two leading candidates for county coroner were\ngearing up for a January run-off election. Each candidate secured the endorsement of their party\xe2\x80\x99s\npresidential nominee, Ronald Grump and Moe Widen, who quickly joined the campaign trail to\nbuild support. At huge rallies held in the town\xe2\x80\x99s colossal football stadium, the candidates and their\nendorsers urged their supporters to make their own yard signs and display them proudly on their\nfront lawns\xe2\x80\x94the bigger and more sensationalist the sign, the better. \xe2\x80\x9cThis race could be won or lost\nbased on those signs,\xe2\x80\x9d said one local commentator.\nMaria Perez and Monica Cruz lived on the same street in the Athenian neighborhood of Two\nPoints. Their political views couldn\xe2\x80\x99t be more polarized, with each convinced that their preferred\ncandidate for coroner was the only person who could save this country from decay. Perez and Cruz\nbegan enthusiastically making yard signs. Perez, an electrician, fitted her sign with lightbulbs that\nflashed her candidate\xe2\x80\x99s name for all her neighbors to see. Cruz, a party-planner, was no less creative,\ndecorating her sign with patriotic symbols to catch everyone\xe2\x80\x99s eye.\nWhen Perez\xe2\x80\x99s candidate fell behind in the polls, she concluded that her lightbulb sign wasn\xe2\x80\x99t\nenough. One night, she snuck over to the edge of Cruz\xe2\x80\x99s property and, making sure not to step on\nCruz\xe2\x80\x99s lawn, used a long stick to yank the patriotic sign onto the street. She then burned the sign\nbefore posting a photo of the ashes on Twitter along with the hashtag #CrematetheCoroner.\nUnfortunately for Perez, Cruz spotted this act of partisan passion (even in the darkness, Perez had\nsomething of a glow to her). When Cruz saw Perez leaving for work the next morning, she walked\nacross Perez\xe2\x80\x99s driveway and smashed every light bulb on the illuminated sign with a baseball bat.\n\n\x0cCASES & CRITIQUE\n\n291\n\nUndeterred, Perez and Cruz spent the weekend making new signs. Perez made a metal sign in\nthe shape of a nectarine, while Cruz went old school with a cardboard sign featuring her candidate\xe2\x80\x99s\nname. But the two neighbors went one step further this time. Perez wired her metal sign to deliver\na sharp electric shock to anyone or anything that touched it. Cruz put her own vocation to good use,\nattaching some string to her cardboard sign to detonate a glitter bomb if the sign were pulled out of\nthe ground.\nSure enough, the booby traps came in handy. On election week, with pollsters confidently\nclaiming that the candidates were neck and neck, Perez and Cruz made a last-ditch effort to clinch\nthe contest for their side. When Perez walked onto Cruz\xe2\x80\x99s front lawn and grabbed the cardboard\nsign, the glitter bomb exploded, showering her from head to toe in sparkly bits of plastic. She\ncoughed, spluttered, and sneezed, gasping for air as the glitter did its work.\nPerez returned home utterly distraught, but she didn\xe2\x80\x99t have to wait long for revenge. Later that\nday, Cruz decided to steal the metal sign. As she tugged it, she suffered an electric shock that stung\nher hand so sharply that she immediately let go and ran home. Unbeknownst to anyone, Cruz had\nan undiagnosed heart condition, and she suffered a heart attack later that day while sitting on her\nporch. Peering out of her window, Perez saw Cruz fall to the ground and clutch her chest, but she\nwas too busy scrubbing the glitter off her face to care. It was hours before Cruz was found.\nPerez is outraged. Election day is around the corner, yet she\xe2\x80\x99s still finding glitter in her hair and\nclothing despite her repeated efforts to bathe and do laundry. She wants to sue. What claims could\nshe bring and why? What counterarguments would you expect? And, briefly, who do you think will\nprevail and why?\nCruz remains in hospital. The doctors think she\xe2\x80\x99ll eventually recover, but it looks like she might\nnot make it out of hospital in time to attend any election-night parties. What claims could she bring\nand why? What counterarguments would you expect? And, briefly, who do you think will prevail\nand why?\n<< END OF EXAM >>\n\n\x0c292\n\nTORT LAW\n\nC. Sample Syllabus\nTo see the \xe2\x80\x9cliquid\xe2\x80\x9d syllabus accompanying this casebook, including online materials not included\nhere, please visit www.thomaskadri.com/torts. Instructors using this casebook might roughly divide the\nmaterial up as follows (based on a 4-credit class meeting three times a week):\nWeek 1: Battery\nWeek 2: Assault; Consent\nWeek 3: Defense of People & Property; False Imprisonment; Trespass to Land\nWeek 4: Conversion; Trespass to Chattels; Consent; Public Disclosure of Private Facts\nWeek 5: Defamation; Injury; Duty (Unqualified Duties)\nWeek 6: Duty (Qualified Duties)\nWeek 7: Breach (Reasonable Person)\nWeek 8: Breach (Custom & Cost/Benefit)\nWeek 9: Breach (Res Ipsa Loquitor); Cause (Actual Causation)\nWeek 10: Cause (Proximate Causation)\nWeek 11: Negligence Per Se; Comparative Fault; Assumption of Risk (Express)\nWeek 12: Assumption of Risk (Implied); Ultrahazardous Activities; Compensatory Damages\nWeek 13: Punitive Damages; Vicarious & Joint Liability; IIED\nWeek 14: IIED; NIED; Tort Alternatives\n\n\x0cCASES & CRITIQUE\n\n293\n\nD. Table of Cases & Problems\nAlcorn v. Mitchell .......................................................................................................................................... 6\nLeichtman v. WLW Jacor Communications, Inc. ..................................................................................... 7\nCecarelli v. Maher .......................................................................................................................................... 9\nPaul v. Holbrook .......................................................................................................................................... 10\nTech Bro Problem ........................................................................................................................................ 11\nCole v. Hibberd ............................................................................................................................................ 11\nVosburg v. Putney ........................................................................................................................................ 13\nGarratt v. Dailey ........................................................................................................................................... 16\nFisher v. Carrousel Motor Hotel, Inc. ....................................................................................................... 19\nEichenwald v. Rivello................................................................................................................................... 21\nBeach v. Hancock ......................................................................................................................................... 25\nBrooker v. Silverthorne ............................................................................................................................... 26\nVetter v. Morgan .......................................................................................................................................... 28\nThurgood Problem ...................................................................................................................................... 29\nIn re White .................................................................................................................................................... 30\nRestatement (Second) of Torts \xc2\xa7 892b ...................................................................................................... 31\nKoffman v. Garnett ...................................................................................................................................... 32\nNeal v. Neal ................................................................................................................................................... 34\nMcPherson v. McPherson ........................................................................................................................... 36\nAnti-Vax Problem ........................................................................................................................................ 37\nHaeussler v. De Loretto ............................................................................................................................... 38\nKatko v. Briney ............................................................................................................................................. 39\nFojtik v. Charter Medical Corp. ................................................................................................................. 42\nGrant v. Stop-N-Go Market of Texas, Inc. ............................................................................................... 44\nBar Trip Problem ......................................................................................................................................... 47\nJacque v. Steenberg Homes, Inc. ................................................................................................................ 49\nBurns Philp Food, Inc v. Cavalea Continental Freight, Inc. .................................................................. 52\nF\xc3\xbatbol Is Life Problem ................................................................................................................................. 53\nThyroff v. Nationwide Mutual Insurance Co........................................................................................... 54\nIntel Corp. v. Hamidi................................................................................................................................... 57\nNFT Problem ................................................................................................................................................ 62\nTank Problem ............................................................................................................................................... 63\nCopeland v. Hubbard Broadcasting, Inc................................................................................................... 63\nDesnick v. American Broadcasting Companies, Inc. .............................................................................. 64\nTech Support Problem ................................................................................................................................ 68\nRestatement (Second) of Torts \xc2\xa7 652d ...................................................................................................... 69\nSidis v. F-R Publishing Corp. ..................................................................................................................... 70\nDaily Times Democrat v. Graham ............................................................................................................. 72\nTour de Atlanta Problem ............................................................................................................................ 75\nRestatement (Second) of Torts \xc2\xa7\xc2\xa7 558\xe2\x80\x93559, 564\xe2\x80\x93566 ............................................................................. 75\nNew York Times Co. v. Sullivan (AL) ....................................................................................................... 76\nNew York Times Co. v. Sullivan (US) ....................................................................................................... 77\nPotter Problem ............................................................................................................................................. 83\nWalter v. Wal-Mart Stores, Inc. ................................................................................................................. 84\nG.O.A.T. Problem ........................................................................................................................................ 88\nMussivand v. David ..................................................................................................................................... 89\nOsterlind v. Hill ............................................................................................................................................ 91\nBaker v. Fenneman & Brown Properties, LLC ......................................................................................... 92\nBullock v. Tamiami Trail Tours, Inc. ........................................................................................................ 96\nLeffler v. Sharp .............................................................................................................................................. 99\nPosecai v. Wal-Mart................................................................................................................................... 102\nTarasoff v. The Regents of the University of California ....................................................................... 105\n\n\x0c294\n\nTORT LAW\n\nGraff v. Beard .............................................................................................................................................. 110\nMartin v. Evans........................................................................................................................................... 115\nPingaro v. Rossi .......................................................................................................................................... 119\nCampbell v. Kovich .................................................................................................................................... 120\nZap Problem ............................................................................................................................................... 121\nFardell v. Potts ............................................................................................................................................ 121\nVaughan v. Menlove .................................................................................................................................. 124\nAppelhans v. McFall .................................................................................................................................. 125\nPyramid Problem ....................................................................................................................................... 128\nLake Shore & Michigan Southern Railway Co. v. Miller ...................................................................... 129\nDaniels v. Clegg .......................................................................................................................................... 130\nEichhorn v. Missouri, K. & T. Railway Co. ............................................................................................ 131\nTucker v. Henniker .................................................................................................................................... 133\nAsbury v. Charlotte Electric Railway, Light & Power Co. .................................................................... 134\nLittle Rock & Fort Smith Railway Co. v. Tankersly............................................................................... 135\nFox v. Town of Glastenbury ..................................................................................................................... 136\nDenver & Rio Grande Railroad Co. v. Lorentzen .................................................................................. 137\nDenton v. Missouri, Kansas & Texas Railway Co.................................................................................. 138\nEllison v. Brady ........................................................................................................................................... 139\nThe T.J. Hooper .......................................................................................................................................... 144\nTorino Problem .......................................................................................................................................... 146\nJohnson v. Riverdale Anesthesia Associates........................................................................................... 147\nDr. Disaster Problem ................................................................................................................................. 149\nUnited States v. Carroll Towing Co......................................................................................................... 150\nRhode Island Hospital Trust National Bank v. Zapata Corp. .............................................................. 152\nBlack Island Problem ................................................................................................................................. 154\nByrne v. Boadle ........................................................................................................................................... 155\nYbarra v. Spangard..................................................................................................................................... 157\nKambat v. St. Francis Hospital ................................................................................................................. 160\nMuckler v. Buchl ........................................................................................................................................ 162\nButts v. Weisz ............................................................................................................................................. 165\nGreek Life Problem .................................................................................................................................... 168\nWildfire Problem ....................................................................................................................................... 168\nSummers v. Tice ......................................................................................................................................... 168\nSindell v. Abbott Laboratories .................................................................................................................. 172\nDrag Superstar Problem ............................................................................................................................ 178\nUnion Pump Co. v. Allbritton.................................................................................................................. 178\nJolley v. Sutton London Borough Council.............................................................................................. 181\nDate Night(Mare) Problem ...................................................................................................................... 186\nTiktok Challenge Problem ........................................................................................................................ 186\nPalsgraf v. Long Island Railroad Co. ....................................................................................................... 187\nFast Eddie\xe2\x80\x99s v. Hall ..................................................................................................................................... 194\nTarget Practice Problem............................................................................................................................ 197\nDalal v. City of New York ......................................................................................................................... 197\nBayne v. Todd Shipyards Corp................................................................................................................. 198\nVictor v. Hedges ......................................................................................................................................... 200\nUnited States v. Reliable Transfer Co. ..................................................................................................... 203\nHunt v. Ohio Department of Rehabilitation and Correction .............................................................. 205\nBoozy Boris Problem ................................................................................................................................. 206\nRestatement (Third) of Torts: Apportionment of Liability \xc2\xa7 8 ........................................................... 206\nPost-Workout Problem ............................................................................................................................. 207\nJones v. Dressel ........................................................................................................................................... 207\nDalury v. S-K-I, Ltd. .................................................................................................................................. 210\nSmollett v. Skayting Development Corp. ................................................................................................ 213\n\n\x0cCASES & CRITIQUE\n\n295\n\nAvila v. Citrus Community College District .......................................................................................... 215\nRylands v. Fletcher ..................................................................................................................................... 222\nKlein v. Pyrodyne Corp. ............................................................................................................................ 224\nFoster v. Preston Mill Co. ......................................................................................................................... 229\nPyromania Problem ................................................................................................................................... 231\nKenton v. Hyatt Hotels Corp.................................................................................................................... 232\nMcMillan v. City of New York ................................................................................................................. 236\nNational By-Products, Inc. v. Searcy House Moving Co...................................................................... 243\nMathias v. Accor Economy Lodging, Inc. .............................................................................................. 246\nTaber v. Maine ............................................................................................................................................ 249\nRavo v. Rogatnick....................................................................................................................................... 253\nRestatement (Third) of Torts: Apportionment of Liability \xc2\xa7 23 ......................................................... 255\nDickens v. Puryear ..................................................................................................................................... 256\nLittlefield v. McGuffey ............................................................................................................................... 259\nJones v. Clinton .......................................................................................................................................... 263\nHustler Magazine, Inc. v. Falwell ............................................................................................................. 267\nSnyder v. Phelps ......................................................................................................................................... 271\nBeul v. Asse International, Inc. ................................................................................................................ 276\nWaube v. Warrington ................................................................................................................................ 280\nDillon v. Legg .............................................................................................................................................. 283\n\n\x0c"