Tort Law: A 21st-Century Approach

Tort Law: A 21st-Century Approach

Zahr K. Said
Associate Dean for Research and Faculty Development Charles I. Stone
Professor of Law
University of Washington School of Law
CALI eLangdell® Press 2021

Tort Law: A 21st-Century Approach by CALI is licensed under a Creative Commons Attribution-NonCommercialShareAlike 4.0 International License, except where otherwise noted.
Copyright 2021 CALI
This book was produced with Pressbooks (https://pressbooks.com) and rendered with Prince.

Contents

About the Author

viii

Notices

ix

About eLangdell Press

x

Editor Notes

xi

Part I. Module 1: Introduction to Tort Law
1. A 21st-Century Overview of Tort Law

3

2. Introduction to Negligence

19

3. Introduction to Strict Liability

34

4. Distinguishing Strict Liability from Negligence (Socratic Script)

46

5. Introduction to the Intentional Torts: Protecting Property, Body, and Mind

61

6. Intentional Torts vs Negligence (Socratic Script)

90

Part II. Module 2: Intentional Torts
7. Intent

105

8. Revisiting Assault and Battery

120

9. False Imprisonment

130

10. Intentional Infliction of Emotional Distress (“IIED”)

139

11. IIED: A Deeper Dive (Socratic Script)

152

12. Trespass to Chattels and Conversion

165

13. Defenses Against the Intentional Torts

179

Part III. Module 3: Negligence
14. Negligence: Duty

207

15. Duty As a Function of Foreseeability (Socratic Script)

212

16. Negligence: Breach

275

17. Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script)

296

18. Negligence Per Se and Res Ipsa Loquitur

323

19. Negligence: Causation

361

20. Negligence: Proximate Cause

400

21. Negligence: Foreseeability in Duty and Proximate Cause Analysis (Socratic Script)

411

Part IV. Module 4: Defenses, Privileges, Immunities and Limitations
22. Plaintiff’s Conduct

435

23. Immunities

482

24. Statutes of Limitation and Repose

529

Part V. Module 5: Products Liability Law
25. Developments in Tort Law and Early Products Liability Law

539

26. Implied Warranty

547

27. Express Warranty

563

28. Strict Products Liability

577

29. Product Liability Based on Dangerous or Defective Condition

581

30. Design Defects (Socratic Script)

588

31. Defenses to Products Liability

609

Part VI. Module 6: Damages
32. Punitive Damages

623

33. Compensatory Damages

629

34. Statutory Caps on Damages (Socratic Script)

636

35. Implications for Social Justice

654

Part VII. Module 7: Defamation
36. Introduction to Defamation’s Elements at Common Law (Until 1964)

687

37. Constitutional Constraints

715

38. Defenses and Limitations

754

About the Author
Professor Zahr K. Said is the Associate De an for Research and Faculty Development and Charles I.
Stone Professor of Law at the University of Washington School of Law. Before law school, Said studied
comparative literature and holds a Ph.D. from Harvard University and a B.A. from U.C. Berkeley. She
received a J.D. from Columbia Law School, where she was a Kent Scholar, served as Articles Editor
for the Columbia Journal of Law and the Arts, and won the Young B. Smith Prize for Excellence in
Torts. Said has taught as a Visiting Professor at the University of Virginia School of Law and Stanford
Law School. Said’s scholarship focuses on copyright law, litigation, and law and literature. She has
taught Torts for over a decade and Said received the Philip A. Trautman 1L Professor of the Year Award
(2016). She has also taught an upper division torts theory class and a business torts seminar, as well
as copyright and intellectual property classes that involve fundamental tort principles applied in an
upper-division context. Torts is her favorite class to teach, just as it was her favorite 1L class.

viii | About the Author

Notices
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This material does not contain nor is intended to be legal advice. Users seeking legal advice should
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e ditors have endeavored to provide

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Notices | ix

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x | About eLangdell Press

Editor Notes
Editor’s note on modifications to the cases included in this book
In editing judicial opinions, I have maintained the original language and much of the formatting except
as follows:
I have

omitted most judges’ names and other references to the case

disposition that were

not

deemed relevant. I have corrected obvious non-substantive typographical errors and freely inserted
or removed paragraph breaks and headers in many instances. I have indicated most substantive
omissions with bracketed asterisks. Where asterisks exist without brackets they are found in the
original. In some cases, I explain omissions, such as when I have removed a section of substantive
analysis or reserved discussion for later in the course. I have indicated omitted citations and footnotes
with brackets as per the legend below. In cases that cite e xtensively to the parties’ briefs or trial
record, I have some times opted to drop citations without signaling doing so in order to declutter the
text. Any footnotes in the opinions are original to the opinions unless indicated as Editor’s notes, but
footnotes will not correspond to the same number as they did in the original citation.

[c]: indicates that a citation has been omitted [Letter is capitalized or not depending on whether it
started a sentence]
[cc]: indicates that multiple citations have been omitted
[fn]: indicates that footnote has been omitted
[fns]: indicates that multiple footnotes have been omitted
* * *: indicates asterixes in the original
[***]: indicate omissions from published opinions

Editor Notes | xi

PART I

MODULE 1: INTRODUCTION TO TORT
LAW

Module 1: Introduction to Tort Law | 1

1. A 21st-Century Overview of Tort Law
The Origins of Tort law
The purposes of tort law have e xpanded over the centuries of its evolution. In its earliest forms in
England in the 12

th

century, tort claims provided a means of ordering civil society and keeping the

peace. By defining certain conduct as wrongful and enabling a means of redress for harms caused by
deviations from that standard, tort law reflected and helped shape social behavior and expectations.
It was the industrial revolution in England (roughly defined as the late 18

th

through early 19

th

century)

that paved the way for the rise of modern tort law. Changes in manufacturing and transportation
transformed the agricultural economy and brought sweeping changes to labor practices. Innovative
technologies continued to be de veloped to meet the demands of operating efficiently at this new
scale. Increasing mechanization in the industrialized workforce forced new patterns of behavior and
exposed human bodies to increased risks of catastrophic harm. The rise of railway travel, likewise,
brought a new wave of accidents—and accident law—both in England and in the United States, whose
jurisprudence borrowed heavily from English law. While tort law first began to be recognized as a
distinct field in England in the 18
th

of law until later in the 19

th

century, in the U.S., tort did not consolidate into a recognized area

century.

Initially, workers found tort law’s rigid strictures to be barriers to recovery. Various protective
doctrines insulated employers from the

costs of employee

injuries and made it difficult for

employees—and often their widows—to recover legally for injuries and death. Indeed, some have
argued that the rise of negligence law was rooted in the legislative efforts to insulate businesses from
liability that might otherwise attach more e asily under a strict liability standard. Under this theory,
negligence law developed partly as a way to support the growth of businesses whose operations
could have be en hindered by expansive tort liability in this era prior to the creation of alternative
mechanisms for dealing with employee injuries. Ultimately, tort law played a critical role in increasing
worker safety and in the e arly twentieth century, its changing rules helped give rise to our current
systems of workers’ compensation, private insurance and consumer protection law. In some respects,
tort law both reflects the values of the jurisdiction that develops it and contributes to shaping
behavior and values in the community it regulates.
In addition to its common law evolution, tort law in the modern era has taken shape from a significant
amount of state and federal legislation. In the United States the 20

th

century witnessed the growth

of a culture of governance through agencies and statutes, sometimes referred to as the rise of the
“administrative state.” Many actions that might have be en addressed through common law principles
are now governed by state or federal statutes, administrative regulations or municipal ordinances.
Consequently, studying tort law also provides a valuable e xploration of the common law’s interaction
with statutory and administrative regimes.

A 21st-Century Overview of Tort Law | 3

Introduction to Studying Tort Law
Welcome to the study of tort law. The word tort comes from the Latin torquere, “to twist.” In Middle
English, it meant “injury” –or the ide a of twisting or turning that leads to harm—and in contemporary
French it still means “wrong.” “Torts” are wrongful actions that cause some kind of harm for which
the victims of the harm may seek legal relief. Torts are not usually wrongs arising from the breach
of a contract. While there is a tort called “tortious interference with contract” (which is what it
sounds like), and there are a few other instances where tort and contract law intersect, generally
torts pertain to actions between parties who might have ne ver made any sort of contract or promise
to collaborate. Tort actions mostly arise be tween strangers. Whereas the typical remedy under tort
law is compensation through money damage
s, a common remedy for breach of contract law is
“performance,” or forcing the party to complete what they promised to do by contract. Keep in mind as
you launch your study of torts the different way harms are redressed in this context of harms arising
usually outside of any contract or promise. An important feature of the torts litigation landscape is
the contingent fee arrangement: the plaintiff’s attorney takes the tort case in the hope s of winning it
and receives payment only if the plaintiff wins. In such cases, the attorney commonly receives around
a third of the plaintiff’s award.
Legally speaking, tort lawsuits are civil, not criminal actions, which means they are brought by private
parties against other parties. As with almost every legal generalization, there are e xceptions to the
dividing line be tween tort law and criminal law. A driver who causes significant losses and harms at
the whe el could be guilty under criminal law as well as liable for negligence under civil law. Different
actions—or lawsuits—would be brought by different entities seeking different remedies, animated
by different purposes and subject to different procedural and substantive rule s. The introductory
torts course will rarely dwell much on the tort/criminal intersection. Torts is a class that typically
introduces law students to civil law and most professors focus accordingly.
Tortious conduct may involve physical harm caused to people or property by car accidents, machinery
malfunctions, medical malpractice, trespass on land, false imprisonment, and assault and battery, to
1

name the most common kinds. Victims may also recover in some cases where there has be en no
physical harm, where the y can show that the tortious conduct has caused harm to their reputation,
dignity, privacy, mental wellbeing or in a narrower subset of cases, when they have suffered because
their family members or loved ones have been physically harmed.

1. Echoing the earlier distinctions between civil and criminal law, note that civil assault and battery are torts, dealt with in
private law, which may allow the victim to seek money damage for their harms or to stop future harms by the assailant.
Criminal assault and battery are crimes, dealt with in public law, which may allow the state or government to prosecute
and penalize the assailant. It’s important to keep these distinct because the elements necessary to prove that the
conduct was criminal differ from the inquiry into whether the conduct was tortious. Additionally, the remedies and the
burden of proof differ.
4 | A 21st-Century Overview of Tort Law

Effects of Contemporary Tort Law
In the modern era, the effects of contemporary tort law are hotly debated. The torts “system” is
not some centralized agency with consistent and predictable rulings but rather a complex set of
interactions between state laws—which vary greatly—and federal laws. In addition, agency regulations
and constitutional limits furthe r shape the contours of contemporary law. Partly as a result of this
decentralization, amassing systematic data is challenging if not impossible. Moreover, most cases
settle in private agreements or never rise to full legal disputes in the first place or are handle d as
a matter of insurance and thus remain “off the radar” of cases and published opinions that can be
tracked and studied.
Nonetheless, there is some consensus that tort law continues to play a role in disciplining the be havior
of manufacturers, corporations and even government entities who may otherwise have incentives to
cut costs on safety measures. Class action lawsuits brought to help those who have be en injured,
say by chemicals (like asbestos or diacetyl) or products (like tobacco, baby powder or certain breast
implants) attempt to compensate and protect those who have suffered due to conduct that caused
harm on a vast scale. These lawsuits arguably play a deterring role and encourage entities to adopt a
safer calculus in their risk assessments as they contemplate their choices for the future. However, the
extent of that deterrence is debated and difficult to measure empirically. Once again, there is some
consensus that almost all entities that operate on any significant scale anticipate and accept some
liability as a cost of doing business. They will usually be forced to adjust their liability projections and
behaviors after major litigation, for both economic and legal reasons.
Consequently, tort law disciplines actors by incentivizing them to determine and maintain optimally
safe choices and by forcing them to internalize the costs of any injuries arising when they have
failed to do so. Yet tort law seeks an optimal level of safety, not 100% protection against all possible
risks. If companies could guarantee perfect safety, they would probably be taking such burdensome
precautions that they would be overdeterring, that is, behaving in a way that was not necessarily
justified by efficiency concerns and likely not required by morality concerns. This is especially the
case if in adopting e xcessive precautions, entitie s chose to pass on the adde d costs to consumers.
Under the economic (efficiency-maximizing) theory, tort law operates in light of a calculus that
balances the kinds of harms likely to flow from certain conduct against the costs of refraining from
that conduct or taking precautions to minimize risk. Unde r the corrective justice (compensation or
recourse) theory, it seeks to vindicate those that have be en harmed. But even in that view of tort law,
rights and duties are always relative: how will they affect all the relevant stakeholders?
Because tort law is so malleable and diverse by jurisdiction, there are regularly opportunities to
reflect on the law’s present and future state and to consider the rights it recognizes and the values it
expresses. What will society look like if cases develop in one way versus another? How faithful is the
law not just to precedents and legal history but to the future our society wishes to develop?
Thus far, this Introduction has described tort law mostly in terms of its effects on industrial actors
and customers or consumers, presuming injuries that are physical. Yet in addition to structuring
some of the risks and protections around corporate behavior and consumer safety, tort law plays an
A 21st-Century Overview of Tort Law | 5

important role with respect to intangible injuries in our information-rich society. In protecting against
misrepresentations, fraud and false spe ech, for example, tort principles underpin the laws of false
advertising, securities regulation, product warnings and labeling and defamation. In your second and
third years as law students, you will likely choose to pursue at least some classes that are rooted at
least in part in tort law, such as environmental law, intellectual property law, corporate governance,
insurance law and agency law, among others. In these upper-division areas, you will find that many of
the key concepts you learn in your first year remain relevant, such as how courts and policymakers
identify, define and balance rights and duties.
Tort law also plays a significant role in the sphe re of our social lives. In providing compensation
under wrongful death statutes and compensating for loss of consortium when individuals lose family
members and spouses, tort law clearly signals certain values about the primacy of family in society
and the importance of emotional ties to others. In allowing recovery for a wrongful sterilization or
the loss of a fetus or and in subordinating injuries to property and pets below injuries to humans, tort
law signals its values. With regard to defamation claims, tort law similarly reveals choices embedded
in the system. For instance, certain categories of allegedly defamatory statements permit the plaintiff
to avoid proving harm. Until as recently as 2020 in the socially progressive state of New York, one
of these categories was still homosexuality–along with criminality, professional incompetence and
loathsome dise ase. Tort law signals that the system—albeit while making efforts to be or to sound
neutral—displays certain choices and values. Tort can become a conduit for social change or an
impediment to it, in other words.

Systemic Biases in Tort Law: Physical vs Emotional Harm
In many respects, tort law’s role in regulating—and perpetuating—certain kinds of discrimination has
not been the focus of scholars and law professors. Much of twentieth-century tort law has been
centered on strict liability and negligence, which is to say on the law of accidents. Various doctrines
predicated recovery on proof of physical harm which has historically had the effect of making
recovery for emotional distress very difficult other than when it accompanied physical injuries.
Contemporary tort law has been slow and reluctant to recognize injuries that are purely emotional:
there was initially thought to be no way to recover for “purely emotional” harm. Tort law’s historical
reluctance to allow recovery for emotional harm and its insistence on proving physical harm both
reflected biases that can now be se en to have fallen disproportionately on women. There was a
corresponding lack of scholarly attention to some of the kinds of harms suffered by women and people
of color. To be sure, courts applying tort law’s doctrines might have felt bound by precedents and rules
but scholars need not have ignored or marginalized injuries resulting only in emotional harm. Yet they
did; the exaggerated emphasis on accidental harms and physical injuries goes beyond courts alone.
In their now-seminal book The Measure of Injury: Race, Gender, and Tort Law (NYU Press, 2010),
Martha Chamallas and Jennifer Wriggins have shown that the focus on negligence came with a
corresponding devaluation of the

intentional torts. This lopsided account of tort law has been

reflected in law school syllabi, legislative agendas and efforts by jurists who study and “restate” or
6 | A 21st-Century Overview of Tort Law

catalog the law, as well as by those who would attempt to reform tort law. Chamallas and Wriggins
demonstrate how treating intentional torts as secondary in importance has systematically minimized
the suffering of women and people of color.
A revolution in the courts in the se cond half of the century led to a patchwork of rules created to
permit some claims associated with emotional distress under particularly heightened circumstances
and narrow cases. A new tort, intentional infliction of emotional distress, was created out of an older
cause of action based on “outrage.” The emergence of claims for recovery based on purely emotional
distress generated some greater attention to the intentional torts, but there remains much work to
do in recognizing the structural biases inherent in tort law.
In addition to the rigid distinctions between physical and emotional harms, for instance, tort law
has also treated certain categories of behavior and certain entities as immune from tort liability. In
some cases, this has meant that pathological or harmful behavior routinely went unrecognized by tort
law. For instance, survivors of domestic violence rarely had viable claims in court even though they
would have had winning battery, assault and other intentional torts claims had their assailant not been
a romantic partner. This state of affairs has not changed much and domestic violence cases often
present genuine challenges for both civil and criminal law.
Skeptics of this account might reply that tort law was never intended to remedy marital or domestic
controversies, which is true. Indeed, when we inherited English tort law, interspousal immunity—a
ban on spouses’ ability to sue e ach other—came along with it. The renowned 18th-century English
jurist, William Blackstone, set out the rationale for that immunity:
“By marriage, the husband and wife are one pe rson in law: that is, the very being or legal
existence of the woman is suspended during the marriage, or at least is incorporated and
consolidated into that of the husband: unde r whose wing, protection, and cover, she performs
everything; and is therefore called in our law-french a feme-covert, foemina viro co-operta; is
said to be covert-baron, or under the protection and influence of her husband, her baron, or
lord; and her condition during her marriage is called her coverture. Upon this principle, of a
union of person in husband and wife, depend almost all the legal rights, duties, and disabilities,
that either of them acquire by the marriage. … If the wife be injured in her person or her
property, she can bring no action for redress without her husband’s concurrence, and in his
name, as well as her own: neither can she be sued without making the husband a defendant.”
The

woman’s legal personhood was effectively dissolved into her husband’s. The

two were

not

commingled in such a way as to make one interchangeable for the other, each with rights to exercise
equally. Instead, the husband absorbe d her legal personhood and was required to act as the legal
person on her behalf if she wanted to exercise legal rights. For this reason, it was thought to be
illogical for an entity to … sue itself. (Intraspousal immunity was slowly abandoned, one state at a time,
th

throughout the 20

century, partly because of the sexist rationale.)

Be that as it may, the effect of excluding certain kinds of harms and including others at any given point
in time se nds signals about the values that are embedded in the legal regime and the interests it seeks
most to protect.
A 21st-Century Overview of Tort Law | 7

Tort Law’s System Biases (Gender, Race and Intersectional Identity
Effects)
Tort law may have begun to wrestle with gender and attendant sociological differences, but gender
is only one dimension to identity. The challenge is that the impact of injuries lands intersectionally,
of course, as a function not just of gender or of race but also of ability, sexual orientation and class,
among other identity markers. In the visionary work of Kimberlé Crenshaw, Mapping the Margins:
Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1249
(1991) she writes of ways that different dimension of identity may typically “intersect” to produce
particular experiences of vulnerability. The problem is structural rather than personal or individual:
“Intersectional subordination need not be

intentionally produced; in fact, it is frequently the

consequence of the imposition of one burden that interacts with preexisting vulnerabilities to create
yet another dimension of disempowerment.” Exploring the systemic biases in tort law requires
grappling with the intersectional effects of its rules and rulings and considering the fundamental
principles in tort law with a fresh eye.
Thankfully, there has be en some progress on issues of social justice. Yet there is no doubt that tort
law continues to reflect signs of deep structural bias. Studies have shown that race and gender
biases enter into damages awards in ways that ought to be concerning for policy makers. A recent
empirical study using mock jurors demonstrated that “[t]he dollar awards for the injuries suffered
by black plaintiffs were lower than awards for the same injuries experienced by white plaintiffs,”
suggesting that race—and implicit racial bias—are bound up with how the legal system evaluates both
responsibility and harm. Jonathan Cardi, Valerie P. Hans and Gregory Parks, Do Black Injuries Matter?:
Implicit Bias and Jury Decision Making in Tort Cases, 93 S. Cal. L. Rev. 507 (2020). Actual damages
awards have be en also measurably lower in patterns that reflect racism and sexism. See, also Jennifer
B. Wriggins, Torts, Race, and the Value of Injury, 1900–1949, 49 How. L.J. 99, 101–03 (2005); Jennifer B.
Wriggins, Whiteness, Equal Treatment and the Valuation of Injury in Torts, 1900–1940, in Fault Lines:
Tort Law and Cultural Practice (David Engel & Michael McCann eds., Stan. Law Books 2009).
The parties’ identities may exert more pronounced and pernicious effects beyond merely skewing
the

amounts of damages. Per professors Ronen Avraham and Kimberly Yuracko, “not only does

tort law’s remedial damage scheme perpetuate e xisting racial and gender inequalities, but also it
creates ex ante incentives for potential tortfeasors that encourage future targeting of disadvantaged
groups.” Torts and Discrimination, 78 Ohio St. L.J. 661, 666–67 (2017). Avraham and Yuracko describe
how the structure of tort law can distort behaviors merely in anticipation of liability, thus perpetuating
further discriminatory behaviors.
Tort law has traditionally not been taught in law schools in ways that take account of its systemic
biases. Yet various doctrines and limitations that tort law treated as neutral had disproportionate
effects that were anything but neutral in whom they most impacted or protected. Correcting the
various biases will require seeing them first. Our legal system operates by stare de cisis, that is, by
building on and usually following precedents. In turn, this means that the lawyerly mind is trained to
identify and gravitate towards tried and true authorities. In keeping with that inclination, perhaps, the
8 | A 21st-Century Overview of Tort Law

legal academy has tended to teach the same torts cases, thus entrenching not only particular cases
but to some e xtent, also traditional viewpoints. Correcting tort law’s biases may require a revisionist
approach to tort law that begins with a reset.
It seems urgent in 2021—and not out of the mainstream—to call for reexamining tort law’s biases.
Theorists associated with various “critical” positions have long called for such a focus on all areas
of law. Valuable contributions by critical race the ory, critical feminist theory, critical legal studies,
“LatCrit” as well as disability crit have laid a foundation for this work. But the work of reenvisioning
tort law is not constrained by any one ide ological approach, or it ought not to be. It is of concern for
all of us engaged in teaching and learning about tort law.
Consider that tort law is a domain whose disputes were de cided, for a long time, only by white
adjudicators and white jurors and navigated only by white male lawyers; even as that began to change,
it remained a system that continued to benefit white cisgendered able-bodied people, especially men
and those with more resources and social and cultural privilege. Calling that out does not require
any particular political or methodological affiliation. And not calling out should no longer seem like a
defensible option.
The good news is that tort law is capable of incredible nuance, flexibility, and particularization. Those
qualities are what can make it frustrating for law students seeking a single hard and fast rule. Yet
they are also the very qualities that make tort law lively and fun to study as well as being capable of
significant systemic change.

Tort Law’s Dynamic Nature Depends on—and Changes with—Culture
Tort law is laudably dynamic: it can and does change in response to changing perceptions of both
identity and justice. This is why it is especially important for students first learning torts to
understand this legal area as one that can play a role in either entrenching various forms of inequality
or helping to minimize it. In delineating the behavior our society deems acceptable or out-of-bounds,
tort law reflects and defines our social relations. As such, the study of tort law offers students the
opportunity to think deeply about their values and belief systems. And it offers them an opportunity
to carry into their professions the desire to participate in changing the law as the arc of justice bends,
we hope, towards greater justice.
Tort law provides an excellent introduction to the common law precisely because of its capacity
for adaptation: it is flexible

and change
s over time in response to sociocultural, economic and

technological pressures. It is flexible by design: several key doctrines use open-ended standards (like
“reasonableness”) and disputes often require fact-sensitive assessment. This means that tort cases
may be slow or cumbersome or expensive to litigate . The upside is that the law can be tailored to
each particular situation, thus allowing for dynamic change that can be harder to achieve when using
legislation to regulate behavior.
Tort law’s principles are applie d in ways that are contingent (or depend for their application) on
A 21st-Century Overview of Tort Law | 9

the culture and historical moment of those who apply them. That means that tort law’s standard of
“reasonableness”—which plays a starring role in negligence but is also embedded in various other
doctrines—reflects particular values and perspectives at a given place and moment in time.

A Thought Exercise on “Reasonableness”
Imagine you are a judge and you have be en asked to make a de cision about whether to allow a
case to move forward in an action over a car accident. Ordinarily, a driver has a duty to exercise
reasonable care in e verything she does related to the car and driving and any risks to others her
driving may cause. You will therefore ne ed to evaluate the reasonableness of the defendant’s
actions, and specifically, whether it was reasonable not to have replaced the brakes on the car
after the brake light had been on for four days, given that the brakes failed on day five and
caused an accident which caused significant injury to the plaintiff. At this point, you’ve got only
the barest amount of information based on some preliminary filings.
What would you want to know in order to assess whether this was reasonable?
Now picture the reasonable person. Who appears in your mind?
What is the person’s race, gender, ethnicity and age? Did you imagine a person with a disability?
What is the person’s cognitive le vel? What do you presume about this person’s education level
and professional status?
There

are

two points to engaging in this thought e
xercise. The first is that the assessment of

reasonableness is often highly factual and requires balancing. If the car is new and has never
malfunctioned before, four days may be very little time from a routine service light’s first appearance
to the brake’s failure. If the car is unre liable and the light simply one more sign that it requires
maintenance, then waiting four days may seem less excusable. Would it matter to you how difficult it
was for the driver to make time to get it to the repair shop? What if the driver was a single mother
holding down two jobs and she had booked a service appointment for the first day she was off work,
which was two days later than the accident? What if the driver was a collegiate athlete involved in
exams and training and hadn’t wanted to distract themselves from those goals, thus postponing the
maintenance? What if the driver was forgetful and kept meaning to fix the brakes when they saw the
light on the dashboard but would forget to make a plan to do so upon leaving the car?
The

se cond point is that tort law’s “reasonableness” standard is highly constructed. We

ask

jurors—or judges, sitting as factfinders—to determine it in each case be cause it can and must be
considered in light of all the circumstances. But that does not make it impartial; humans bring their
implicit biases and cognitive limitations to the task of determining what is reasonable. As you study
tort law, pay attention to ways in which the very idea of reasonableness embeds cultural values or
reflects ageist, sexist, ableist, racist or otherwise outdated and harmful notions. Part of changing the
law is learning to identify hidden defaults and highlighting their impact.

10 | A 21st-Century Overview of Tort Law

In our era, tort regulation can be a lightning rod for political and cultural controversy. Tort actions are
commonly brought by individuals against other individuals or entities, but their sociocultural context
matters and many rulings can have broader impact beyond their individual verdicts. Our approach to
tort law will be to ground cases in their sociocultural context and potential impact as we are reading
and seeking to apply or distinguish them. I encourage you to think about torts and tort cases “in the
real world” not as ancient legal precedents far removed from your experience as a law student and
aspiring lawyer.
As your knowledge of this area increases, it may interest you to think about how tort law helps to
enforce and balance social and e conomic norms of fairness and responsibility. Tort law becomes most
interesting when considered as a form of civil justice. Consider, too, the ways in which the law fails to
achieve the proper balance or justice, in your view, and how and why that might be.

Purposes and Theories of Tort Law
Purposes. In one sense, merely describing the purposes of tort law is challenging; the

field is

politicized and animated by sharp philosophical disputes over how to define its scope and purposes.
However, the

following are

noncontroversial starting points: Tort law e
xists to “(a) to give

compensation, indemnity or restitution for harms; (b) to determine rights; (c) to punish wrongdoers
and deter wrongful conduct; and (d) to vindicate parties and deter retaliation or violent and unlawful
self-help.” Restatement (Second) of Torts § 901 (1979)
Tort theorists have argued over whether the purposes of tort are be tter understood in terms of (1) the
positive legal rights of the victim (and compensation they may be owed as well); (2) the rights and
duties of members of society to one another (and thus fairness to all individuals); (3) limits on the
rights of those who engage in risky conduct or carelessly cause accidents (and the deterrence tort
law imposes on them); and (4) the potential benefits to victim, tortfeasor and members of society if the
costs of prevention and remuneration are maintained at optimal levels (which reflects a commitment
to efficiency). Indeed, some casebooks and approaches to tort law focus very heavily on the e conomics
of tort law, consistent with the vie ws tort law’s core purposes are efficiency and compensation. Others
may take a more philosophical approach, grounding rights and duties in different theories of justice,
highlighting tort law’s purposes of fairness and deterrence.
These terms and theories could be defined at great length and still seem overly simplified to some
and mysterious to others. This text does not purport to be a substitute for an in-depth treatment
of jurisprudence

(which is the

study of theories or philosophies of law). But it will use these

terms—efficiency, compensation, fairness and deterrence—repeatedly throughout the te xt, and to
ensure that readers understand them, it is helpful to define them in terms of theories of justice with a
grounding in tort law.
Theories. Tort law is also commonly framed in terms of several theories of justice: procedural
justice (with an emphasis on fairness, notice

and transparency); distributive justice (balancing

compensation, loss-spreading and efficiency concerns); retributive justice (in seeking to punish and
A 21st-Century Overview of Tort Law | 11

deter wrongdoing); and corrective justice (in providing compensation to the victims of tortious
wrongdoing). There

isn’t a perfect overlap between the four sets of terms since
, for example,

distributive justice balances both compensation and efficiency, but it is still helpful to understand the
philosophical underpinnings that attach to the 20th-century development of tort law.
Procedural justice focuses on the transparency and fairness of processes by which rights
are created and enforced. As such, it is primarily concerned with fairness. Designing a fair
and balanced process is not a guarantee of fair outcomes because parties are not e qually
situated before the law; decisionmakers are not perfectly impartial or incapable of error; and
many laws are outdated and lag behind contemporary views of fairness. Nonetheless, our legal
system stakes significant importance on making an attempt at procedural fairness. not adopt
reasonable measures to prevent it, their culpability may be clearer to evaluate.
For example, the idea of “notice” plays an important role in many tort doctrines, which
is a nod to procedural justice and reflects the ide a that it seems fairer to hold someone
responsible when they were “on notice,” if they knew or should have known that some
harm was likely to happen and still took whatever action they took.
Distributive justice concerns allocating resources and liabilities fairly based on some preset understanding of the right to a “fair share” of both the benefits and burdens. The values
driving that distribution may change over time, by jurisdiction, or in connection with political
administrations. In our era, the driving concerns behind distributive justice have primarily been
economic: who can bear the costs of liability and who should bear the costs of preventing
accidents given the ability of various actors to insure

against injury or to internalize

the

expenses associated with both injury and prevention. Indeed, contemporary tort law has been
strongly influenced by late 19th-century philosophers who advanced utilitarian theories of law,
as well as 20th-century scholars and judges working in the law-and-economics tradition. Such
theorists often seek the “cheapest cost avoider”–the entity best positioned to absorb the costs
of preventing harm and compensating for it when preventions fail—so as to maximize efficiency
regardless of moral culpability.
For example, the doctrine of strict liability (liability without fault) has evolved in ways
that allow parties to engage in behavior that they know in advance will be risky, such as
blasting with dynamite prior to construction. However, merely engaging in the action
will cause the m to be liable for harms they cause through their actions, which allows
them to internalize the costs of precautions and to make their behavior as safe and
efficient as possible. Or at least, that’s one theory of how it works.
Retributive justice is more commonly associated with criminal law, which seeks to punish
wrongdoers. Tort liability is not typically defined so as to impose suffering or punishment on
the wrongdoer. A tortfeasor may be liable in tort even when morally not blameworthy but
merely careless. Likewise, an actor may be liable e ven when behaving carefully but nonetheless
causing harm by taking an action to which the law applies strict liability.
In rare or egregious cases, however, courts may award punitive damages that do
12 | A 21st-Century Overview of Tort Law

reflect theories of retributive justice, namely, that the wrong was so significant the
wrongdoer deserves to suffer.
Corrective justice frames tort law as a form of moral or ethical obligation, structured in
terms of first- and second-order duties. First-order duties specify particular behaviors (such as
driving reasonably or refraining from trespass). Second-order duties arise if an actor breaches
their first-order duties. Accordingly, second-order duties are duties to repair or make the
injured party “whole,” thus correcting the tortfeasor’s wrongs and compensating for the losses
their breach of first-order duties caused. Corrective justice is oriented around the duties owed
by the defendant to those the y injure be cause its central logic is the “making whole” of the
plaintiff.
For example, most plaintiffs sue to recover compensatory damages so that they will be
“repaid” for the costs they incurred in connection with the defendant’s wrongdoing.
One problem with this theory arises when injuries are irreparable; under such circumstances,
tort law may still allow a victim to recover, thus broadening the right of recovery to the
suffering caused by the injury even when the harm is irreparable, that is, something that cannot
be “corrected.” It is also worth noting that the very idea of “wholeness,” when applied to the
body, hints at an ableist understanding of selfhood. Wholeness, of course, is not simply a literal
reference to body parts; it applies to compensation for pain and suffering and medical bills
and many other ways in which catastrophic injury can derail and burden one’s regular way of
life. Hence it is a good idea to keep the literal and figurative uses of “wholeness” conceptually
distinct.
A related theory of tort law is that of civil recourse theory: when a person suffers a particular
kind of harm, they have a right to bring a civil action against the one who harme d them and
seek recovery. Yet unlike corrective justice, the duty to repair does not justify civil recourse
theory. Rather, the individual whose right has been invaded merely has a right of recourse, that
is a right to have their legal claim evaluated. The distinction may seem purely academic, but it
can have important implications for how we conceive of the nature and scope of the plaintiff’s
possible rights and remedies. Proponents of both of these approaches commonly treat tort law
as containing moral obligations (that is, they case it in deontological terms). Tort law expresses
these moral values through rules and outcomes, and efficiency concerns may be subordinated
accordingly rather than prioritized the way they are in the economic account of torts.
Scholars in the field have produced elegant refinements of each of the the ories briefly sketched above;
whole books could be and have be en dedicated to each, in fact. There are also de ep disagreements
about the justifications of tort law that are much elaborated elsewhere. The debate be tween the
two dominant views of (1) “corrective justice or civil recourse” and (2) “the efficiency or utilitymaximizing account” is so longstanding, in fact, it “shown signs of being tired […] midway through its
sixth decade at the very least[,]” and has prompted “increasingly prominent effort of scholars across
generations to move be yond it, either by declaring a truce or by asserting a third model for the field
altogether.” Nathaniel Donahue & John Fabian Witt, Tort As Private Administration, 105 Cornell L. Rev.
1093, 1094–95 (2020).
A 21st-Century Overview of Tort Law | 13

A recent synthesis of tort theories has argued that “morality and efficiency are not mutually exclusive
theories of tort”; instead, “tort law operates as a vehicle through which communities perpetually
reexamine and communicate their values, encouraging individuals to coordinate private relationships
without undue state involvement. In short, the goal of tort law is to construct community.” Cristina
Carmody Tilley, Tort Law Inside Out, 126 Yale L.J. 1320, 1324 (2017). The approach in this book most
resembles this last view, of tort law as a means of constructing communities, a force that is legal
and social and psychological, and one which can be studie d through law but also through economics,
sociology, anthropology, and various theories of identity.
To learn the basic contours and doctrines of tort law you need not reconcile de eper conflicting
theories, of course, but it is helpful to gain at least an introduction to the

the ories that are

underpinning the way tort law was created, has developed and continues to evolve
. When the
materials refer to these first four purposes of tort law—efficiency, compensation, fairness and
deterrence—you will now have at least a preliminary sense of their origins and interconnections.

Check Your Understanding – Set 1

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=23#h5p-1

A More Inclusive Approach to Tort Law
The classic accounts of tort law do not typically lay out racial and social justice as a goal, per se, the
way efficiency, compensation, fairness and deterrence are routinely cited as the core reasons for the
system. One reason for this is that tort law has been treated as though it is neutral in application,
perhaps as a concession to anti-discrimination laws and nationwide efforts to make the law more
equitable or at least, constitutional. Indeed, in the modern era tort law often explicitly sought to
proceed as though it were “color blind,” gender-neutral, and otherwise not taking any categorical
differences into account. Thus even doctrines that had once be en helpful to some vulnerable groups
weakened: “[g]ender and race have disappe ared from the face of tort law. The old doctrines that
explicitly limited recovery exclusively to one gender have be en either abolished or extended on a
gender-neutral basis.” Martha Chamallas, The Architecture of Bias: Deep Structures in Tort Law, 146 U.
Pa. L. Rev. 463 (1998)
14 | A 21st-Century Overview of Tort Law

In the last two decades, a growing volume of scholarship considers the intersection of civil rights
and tort law and builds on various philosophical theories of law to consider how factors like race,
gender, social class, ability and sexual orientation may all play into the tort system’s rights and duties.
Yet casebooks are typically slow to take scholarly changes into account. This casebook’s approach to
tort law deliberately frames social justice as one of tort law’s goals, even if it does so aspirationally,
building on the work of scholars who have called for a more inclusive and sociologically informed
account of tort law. If we take seriously the notion that tort law exists to remedy civil wrongs which
the law has defined as such, it seems important that we define those wrongs in terms of what we know
in our present moment, based on sociological, psychological, cultural and empirical evidence.
st

In the 21 century, we know that many laws fall with disparate impact on vulnerable communities and
individuals. That’s why this book begins with the premise that tort law can be envisioned in a way that
provides a form of access to civil justice or be comes a means of perpetuating civil injustice. In practice,
the law might land somewhere in be tween those two binary choices, but conceptualizing it in this
way from the start can provide a capacious and progressive vision toward which to advance. Only by
understanding how tort law “works,” when it fails, and what it means for it to fail can we collectively
work towards improving the system. Readers of the book do not have to share the same de finitions
of what it means for laws to work or fail; nor need they agree on what it might mean to improve the
system. But engaging in dialogue on those que stions while you’re le arning substantive doctrines will
greatly enrich your understanding of the law and deepen your ability to analyze and apply it. It may
also make the experience of learning the law more fun and rewarding. That’s the hope, anyway.
The cases selected for our discussion are designed to give you a sample of the kinds of wrongdoing
tort law does (and does not) redress, as well as the kinds of legal and policy considerations courts use
in the course of their adjudication. They are also selected to encourage you to think about the balance
of rights and duties in the world: tort law is relational. A person has a right, in relation to another
person, to be free from the foreseeable harms that second person would carelessly cause to happen
to the first. Put another way, that second person has a duty to take reasonable precautions to avoid
causing foreseeable harms to the first person (and to others who could be harme d). That sounds easy
enough, in the abstract, and it’s often cited as a first-order principle: where the law creates a right,
the law also creates a duty. But it is often not all that clear what that actually means as applied to facts
in the world, which is a complicated, messy place in which human actors don’t have perfect foresight
and often make mistakes. This is one of the central challenges courts face as the y attempt to strike a
reasonable balance and develop and apply fair rules over time.

Challenging Subject Matter & Studying Tort Law
Because tort law is so situated in the “real world,” most cases focus heavily on factual questions with
sometimes quite complicated technical issues. You might find yourself having to pay close attention to
map out the facts or to draw a diagram for yourself so that you can understand how a court describes,
for instance, the angle of collision between a train and a car or pedestrian. Likewise, you may find
yourself struggling to make se nse of the the ories of causation when a victim is seeking relief from
A 21st-Century Overview of Tort Law | 15

harm that ensued from a chain of events, or from a combination of multiple factors. Sometimes tort
law is quite gory, and if there is any law school class that needs a trigger warning, it really might be
this one: there will be train accidents and severed limbs; parents claiming emotional distress after
watching their child suffer in agony (perhaps even die before their eyes); there will be fires, and
burns, and medical procedures gone wrong that might make you squirm with discomfort just reading
the facts. There are also dignitary and privacy harms that can be upse tting whether the conduct in
question features sexist, racist, ableist, or otherwise hateful language or actions, or whether the court
itself uses terms or rhetoric that are dismayingly biased even as it speaks in the voice of our country’s
justice system.
This book’s selection of cases features some challenging subject matter. The choice to center issues
of racial and social justice stems from the belief that sweeping things under the collective rug—or
pretending that our civil justice system isn’t sometimes a part of the problem—is a recipe for moving
backwards in terms of greater equity in our country, rather than moving forwards. However we define
“moving forwards,” that’s the be tter direction to conceptualize as we bend collectively towards justice.

The Textbook’s Terminology
There are three terms you need to understand from the outse t, as they are critical to the perspectives
on tort law offered here and the y’ll be use d throughout this casebook. When you read a case, you’ll
often be asked what it holds. It’s critical to be able to distinguish the parts of an opinion that are most
meaningful, including which facts, if changed, could alter the outcome. It’s also important that you be
able to characterize the case analytically, that is, descriptively, and evaluate its reasoning. I believe it’s
also helpful to be able to e valuate the case in terms of how it makes you feel, that is, to understand it
intuitively. Identifying your own intuitions about the law can help you in the identity formation that
takes place in law school as you’re refining and revising your values and ideas about the law. You may
find yourself grudgingly agreeing that an outcome that seems correct as a matter of policy, that is, an
outcome that seems normatively correct, nonetheless feels dissatisfying or unfair. In some cases, your
intuition may point in one direction while your normative opinion points in another. A descriptive
approach to the law seeks to interpret or explain existing law while a normative approach to the law
seeks to critique, justify or reform existing law. (There are, of course, some overlaps between the
various approaches but as a starting proposition, it is important to try to maintain a distinction.)
You also need to be able to analyze and describe the law dispassionately, whatever you feel about it
intuitively or normatively. It may seem touchy-feely to ask you about your intuitions. However, being
able to acknowledge and validate your own intuitions but disaggregate them from your analysis is
an incredibly powerful way to hone your analytical skills. You need to be able to answer questions
about the black-letter law descriptively and accurately (to pass the bar, to predict likely outcomes
and counsel clients). And you ought to be able to think about the normative implications of the law as
you learn it; that’s what drives home how much your legal education matters and what differentiates
law school from a bar-exam preparation class. Tuning in to your intuitions can also make it easier to
manage the some times-challenging subject matter you’ll encounter in tort law: we are he ading into
16 | A 21st-Century Overview of Tort Law

the law of accidents and intentional harms and while it will often be lively, it’s occasionally tragic or
bloody or dehumanizing or all of the above.
Here’s a summary of these three approaches to discussing the law:
• Intuitive: how you feel about the facts or ruling; this is something you can do without a legal
education
• Descriptive: an accurate analytical statement of what the law is or does in a given case, which
requires learning how to read a judicial opinion and may require understanding the context or
case law simply to identify the correct legal rule
• Normative: a statement of what the law ought to be, in your opinion, and why based on policy
factors you’ll learn or gain practice discussing throughout the course
Not all professors use exactly the same te rminology or emphasize the se as centrally but they will all
expect you to be able to she d intuitive modes of thinking and state the rule of a case descriptively
without conflating your normative

e valuations at the

same

time . Law school requires that you

routinely differentiate the “is” from the “ought,” in other words. Whatever the terms anyone uses,
learning to distinguish between intuitive, descriptive and normative modes of analysis is critical to
your success in law school, especially in your first year as you are le arning how to “think like a lawyer.”

Differentiating Negligence, Strict Liability and the Intentional Torts
Most torts casebooks focus on either negligence or intentional torts as a means of introducing
students to torts. Intentional torts are typically considered to be “easier” to understand because the y
are a bit more black-and-white whereas negligence is an area with a lot of “gray” or conceptually
less crisp doctrines. Even this framing, however, may be the result of the overemphasis on negligence
that has historically informed legal education. There can be considerable complexity in aspects of the
intentional torts even though it’s true that they have qualities that can make them easier to teach and
learn at a superficial level.
Our approach in this first module gives you a cross-cutting look at the three primary regimes of tort
law all at once: negligence (fault-based), intentional torts (intent-based) and strict liability torts (nofault based). This approach helps you gain an overview view of what it is you’re going to be le arning to
do with what you learn.
One of the things law school most trains you to do is apply your knowledge effectively. It’s not just
a matter of gaining a bunch of knowledge but learning how to apply it judiciously. Another thing
law school does is train your brain to sort things quickly. You’re going to be asked over and over
again to take a messy fact pattern and distill it down to a rule or prediction. How you distill it down
in torts is partly a function of what you know about these three systems and their purposes and
limitations. When you hear about issue-spotting exercises, for example, you’re being asked to learn
rules and apply them to facts quickly. The spe ed isn’t the point as much as gaining sufficient practice
A 21st-Century Overview of Tort Law | 17

and comfort so that you can use this skill in real-time, as though you were in court or speaking with
a client or working on a deadline under pressure. When you see a torts fact pattern, you will learn
automatically to begin to sort things into buckets, by regime, by doctrines you know, and by other
factors (such as jurisdiction and available defenses). This introductory approach gets you to start
thinking like a lawyer by learning to spot and sort different kinds of torts regimes from each other.
You may understandably be anxious to le arn the individual elements of each of the torts and get
into the doctrinal weeds. However, by approaching the three regimes in this way, you will gain
altitude ove r the whole e cosystem before we drop down into the forest. You will learn why we use
different regimes, what the impact of that decision is from a policy perspective and why the regimes
require different standards of culpability and different evidence. You will also see commonality and
differences in the kinds of interests protected and the kinds of conduct protected against. Two main
questions guide our inquiry throughout this first module:
What sorts of conduct does the law seek to regulate here, and why?
What sorts of interest does the law seek to protect here, and why?
We begin with negligence, which is the core area for most 1L torts courses.

18 | A 21st-Century Overview of Tort Law

2. Introduction to Negligence
Negligence is largely concerned with accidents—wrongs committed carelessly, or harms inflicted
through failure to take certain ordinary precautions. Negligence must be distinguishe d from the two
other regimes you will study. Intentional torts concern tortious behavior that meets a requisite le vel
of intentionality whereas negligence includes accidental wrongs. The domain of strict liability law
attaches liability categorically to certain behaviors, no matter whether the actor was at fault in any
way. What defines that domain is whether a legislature or court has included a particular behavior
in this category. Defining what it means “to be at fault,” instead, falls to negligence law. Over time,
negligence law has proven to be adaptive to social, e conomic and technological change, since the
standard—whether the conduct that produced injury was reasonable under the circumstances—can
change

over time and the legal outcome

usually depends on the facts of the

spe cific case.

Reasonableness is highly constructed, of course; what it means may well be expressed as a function of
ability, class, gender, sexual orientation and race yet with few exceptions, tort law uses a “one-sizefits-all” approach to reasonableness.
The standard negligence claim can be e xpressed as four elements, which are bolde d in the ne xt
sentence. For a plaintiff to win a negligence claim, defendant must have breached their duty of due
care, thus causing the plaintiff’s injuries. The injuries must also be of the kind that tort recognizes,
and there are some limitations on the plaintiff’s behavior that vary by jurisdiction and that you will
learn about later in your course. Summed up, the standard elements of negligence are: duty, breach,
causation, and damages. In some jurisdictions (and casebooks, outlines and other learning materials
you may encounter), causation is broken into two prongs: causation in fact (sometimes referred to
as “but-for causation” due to the most common test applied) and legal causation (commonly called
“proximate cause”). This is why you will sometimes see the te st for negligence listing five, rather than
four, elements. When you cover negligence later in your course, you will devote multiple weeks to it,
so don’t worry about the de tailed aspects of these elements for now. Instead, maintain a high-level
view that allows you to understand the distinctions between the regimes in tort law and to look for
what differentiates negligence, strict liability and the intentional torts.

Questions for the Readings and Areas of Focus
As you read the first three cases, please keep the following questions in mind:
• Who or what, if anyone or anything, was at fault?
• What could have—or should have—been done to prevent the harm, if anything? And by whom?
• In what ways is negligence law capable of change over time?
• Who is “the reasonable person”?

Introduction to Negligence | 19

Davison et Ux v. Snohomish County, Supreme Court of Washington (1928)
(149 Wash. 109)
Plaintiffs [Edwin F. Davison and wife] instituted this action against Snohomish county as defendant,
seeking to recover damages alleged to have be en suffered by them as the result of the negligence of
defendant in the construction and maintenance of the elevated approach to a bridge known as the
Bascule bridge across Ebey Slough. In the southwesterly approach to this bridge there is a right angle
turn towards the south just *110 easterly of the slough, and at this point the causeway or approach
to the bridge is at quite an elevation above the ground level. The bridge itself is approximately 18 feet
wide; the approach leading to the bridge proper, at the curve just to the e ast of the bridge, increases
in width to a maximum of 30.9 feet, narrowing again to 18 feet at the end of the turn.
At about 8 o’clock in the e vening of November 11, 1926, plaintiffs were driving their Ford automobile
toward the city of Snohomish, and proceeded to cross the bridge from west to east at a low rate
of speed. Plaintiff Edwin F. Davison was driving, and, as the car rounded the curve to the e ast of
the slough, he lost control, the car skidded, struck the railing on the e ast or outer edge of the
approach just around the curve, broke through the railing, and, with plaintiffs, fell to the ground.
Both plaintiffs suffered severe and painful injuries, and the automobile was wrecked; for all of which
damage plaintiffs prayed for judgment in a large amount.
Defendant answered plaintiffs’ complaint, denying all the allegations of negligence on its part and
affirmatively pleading contributory negligence on the part of plaintiffs. The action came on regularly
for trial, and resulted in a verdict in plaintiffs’ favor in the sum of $2,500. Defendant seasonably moved
for judgment in its favor notwithstanding the verdict, or, in the alternative, for a new trial. Both of
these motions were denied by the trial court, which thereupon entered judgment upon the verdict,
from which judgment defendant appeals. There is no dispute as to the reasonableness of the amount
of the verdict, if appellant is liable at all; the sole que stion raised being the liability of the county for
any damages whatsoever.
Respondents allege that appellant was negligent in *111 the construction and maintenance of the
approach to the bridge, in that, at the time of the accident, the railing through which respondents’
car broke was insufficient to act as a guard; that the posts which supported the same were de cayed;
that the floor or deck of the approach was so constructed as to slope out and down from the center
of the curve to the oute r e dge, and that appellant, prior to the accident, had been repairing a road
near the west approach of the bridge and in doing this work hauled over the bridge from the e ast
a considerable quantity of dirt, a portion of which was scattered on and over the approach; that on
November 11, 1926, considerable rain fell, and that, as a result, the deck of the approach, being covered
with wet dirt, became very slippery, and, coupled with the other conditions alleged, constituted a
menace to motor vehicle traffic.
Respondents urge that the combined effect of the different matters of which they complain produced
a dangerous situation, and that the suffering of such a condition to exist constituted negligence on
the part of appellant and renders appellant liable for the damages suffered by respondents. Appellant

20 | Introduction to Negligence

contends that respondents failed to prove negligence on the part of appellant, and that its motion for
judgment notwithstanding the verdict should have been granted. [***]
It is undoubtedly the law that it is the duty of a municipality to keep its bridges in a reasonably safe
condition for travel. [c] On the other hand, a municipality is not an insurer of the safety of everyone
who uses its thoroughfares; nor is it required to *112 kee p the same in such a condition that accidents
cannot possibly happen upon them. As was stated by this court in Grass v. City of Seattle, 100 Wash.
542, discussing an accident to a pedestrian which it was claimed was caused by a drop in a sidewalk
ranging from 2 1/2 inches at one side of the walk to nothing at the other side:
‘Manifestly, it seems to us, a city cannot be held negligent for suffering to remain in a sidewalk
a defect so inconsequential as this one was shown to be. A city is not an insurer of the personal
safety of every one who uses its public walks. It owes no duty to keep them in such repair that
accidents cannot possibly happen upon them. Its duty in this respect is done when it keeps
them reasonably safe for use-safe for those who use the m in the e xercise of ordinary care-and
we cannot but conclude that this one was thus reasonably safe.’
Respondents admitted that they were thoroughly familiar with the bridge and its approaches, having
driven ove r the same many times prior to the day of the accident, and they consequently were fully
advised as to the e xistence and location of the curve in the approach, the width of the bridge, and the
approaches and the different grades therein.
As respondents rely upon three

se veral elements, each of which they claim resulted from the

negligence of appellant, all three uniting to render the bridge unsafe and to cause the accident which
is the basis of this action, it is necessary to analyze these elements of alleged negligence: First,
the insufficiency of the railing or guard to prevent respondents’ automobile from skidding off the
approach; second, the fact that the de ck of the approach, at the curve, sloped downward toward the
outer edge, which had a tendency to cause the automobile to slide in that direction; and, third, the
fact that dirt was scattered over the deck *113 of the approach, which, being wet by the rain, caused
the deck to be more slippery than it would have been had no dirt been scattered over it.
The use of the automobile as a me ans of transportation of passengers and freight has, during recent
years, caused certain changes in the law governing the liability of municipalities in respect to the
protection of their roads by railings or guards. A few years ago, when people traveled either on foot
or by horse-drawn vehicles, a guard rail could, to a considerable e xtent, actually prevent pedestrians
or animals drawing vehicles from accidentally leaving the roadbed, but, as a practical proposition,
municipalities cannot be required to protect long stretches of roadway with railings or guards capable
of preventing an automobile, moving at a rapid rate, from leaving the road if the car be in any way
deflected from the roadway proper and propelled against the railing. As was said by this court in the
case of Leber v. King County, 69 Wash. 134:
‘Roads must be built and traveled, and to hold that the public cannot open their highways until
they are prepared to fence their roads with barriers strong enough to hold a team and wagon
when coming in violent contact with them, the condition being the ordinary condition of the
country, would be to put a burden upon the public that it could not bear. It would prohibit the
Introduction to Negligence | 21

building of new roads and tend to the financial ruin of the counties undertaking to maintain
the old ones.’
This principle applies with special force to elevated causeways constructed of wood, such as the
approach from which respondents’ automobile

fell, as upon such a structure

the

railing can be

anchored or secured only to the de ck of the causeway. Upon the ground, in situations of special
danger, strength can be given to a guard or railing by driving posts into the e arth, and *114 a guard of
any desired strength can be constructed in that manner. A concrete viaduct can be constructed with
side walls of considerable resisting power; but the same degree of protection cannot be e xpected from
a guard or railing along the side of an elevated frame causeway or viaduct. Respondents introduced
some testimony to that effect that the posts which supported the railing were, to some extent, rotted.
We have carefully considered this testimony, and, for the purposes of this opinion, assume that it was
true; but we still do not think that it was sufficient to take the case to the jury upon the question of
appellant’s negligence in connection with the condition of the railing at the time of the accident.
In regard to the se cond element of alleged negligence urged by respondents, the fact that, at the curve
in the approach, the de ck sloped slightly downward towards its outer edge, we are of the opinion that,
in view of the fact that the slope was so slight as not to be noticeable to the e ye, amounting to no
more than a small fraction over an inch to 18 feet horizontal measurement across the de ck, or from 2
3/4 inches to 1 1/8 inches to the entire width of the de ck, it is our opinion that the maintenance of the
approach in this condition did not constitute such negligence on the part of appellant as would render
appellant liable to respondents in this action. The Supreme Court of Michigan, in the case of Perkins
v. Delaware Township, 113 Mich. 377, held, as matter of law, that the maintenance of a bridge, 16 feet
wide, which had no railings at all, one inch lowe r on one side than the othe r, was not negligence on
the part of the township. While the facts of the Michigan case differ considerably from the situation
now before us, the opinion is *115 of value in aiding us in the determination of the case at bar.
Referring to the third element of negligence relied upon by respondents, the fact that some dirt was
scattered over the deck of the approach, and that due to the fact that considerable rain had fallen
and was still falling at the time of the accident, the wet dirt caused the de ck to be unusually slippery,
we are unable to find any testimony in the record which would justify the submission of this element
of alleged negligence to the jury. Appellant would not be liable be cause of any ordinary accumulation
of dirt or similar matter upon the approach, unless a dangerous condition were permitted to exist
for such a period of time as would imply, in law, notice to appellant of the fact that its roadway was
unsafe, and it should further appear that appellant had been negligent in not remedying the condition
within a reasonable time. Respondents contend in this case that the dirt upon the roadway had been
scattered by appellant’s employees within a very short time prior to the accident. Giving the testimony
upon this point the construction most favorable to respondents’ contention, we feel compelled to hold
that, as matter of law, there was no testimony sufficient to go to the jury upon this alleged element of
appellant’s negligence.
[***] Respondents rely upon the case of Beach v. City of Seattle, 85 Wash. 379, in which this court
upheld a verdict against the municipality, based upon its negligence in le aving unguarded, poorly
lighted, and without danger signals, a blind street end at the e dge of a gulch. Examination of the
22 | Introduction to Negligence

opinion in this case indicates that the de cision was based largely upon the failure of the city to place a
red light or other danger signal at the street end, or to place lights in the vicinity which would disclose
the dangerous situation. The city had also neglected to construct any barrier whatsoever which might
serve as a visible warning of danger, as well as an obstruction. The physical facts which resulted in
injury to the plaintiff in this action constituted almost an invitation to the driver of an automobile to
continue along the street which was *117 broken by the de ep gulch; there being nothing to suggest
danger. [***]
The judgment is reversed, with directions to dismiss the action.
Note 1. What is the holding in this case? In layperson’s terms, who “wins” and what do they win? In
legal terms, why is that significant?
Note 2. What does it tell you if someone is a pe titioner versus a respondent? (Or an appellant versus
an appellee?)
Note 3. On what does the court base its reasoning, in your view? Is it focused primarily on the
capacity—or incapacity—of engineering to prevent accidents like
emphasize

policy reasons? Does it focus on the

the

one

at issue? Or does it

plaintiff’s conduct? Does it follow precedential

authority in a way that disposes of the case, that is, compels the outcome?
Note 4. This case refers to “Ebey Slough,” in Washington state, an area named for a white se ttler in
the region whose relationship to the native pe ople of the Tulalip tribe was sufficiently contested that
they made a bid to change the name in 2012. Ultimately the proposed name change faile d and Ebey
Slough remains on the map as such. As we read older cases, however, it’s a good idea to be attentive
to the way meanings change over time with revisions of the narratives of our nation’s history and
shifts in cultural awareness. For more, see: https://www.heraldnet.com/news/should-ebey-sloughbe-renamed-some-say-yes/

Check Your Understanding – Set 2

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=25#h5p-2

Introduction to Negligence | 23

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=25#h5p-3

Bartlett v. Northern Pac. Ry. Co. & City of Tacoma, Supreme Court of
Washington (1968)
(74 Wash.2d 881) (Rehearing Denied Jan. 10. 1969)
The trial court in granting summary judgment of dismissal of the plaintiff’s action against the city of
Tacoma and the Northern Pacific Railway Company, commented, ‘Maybe the supreme court will think
differently.’ It does!
The end result may be the same at the conclusion of a jury trial, for a jury may reach the same
conclusion as the trial court: That neither defendant failed in any duty owed to the plaintiff which
could have prevented the injuries which he sustained. Nevertheless, we are satisfied that there are
issues of fact which should be decided by a jury.
The plaintiff had driven his automobile up an incline d roadway where it makes a 90 left turn to cross
a bridge over the Northern Pacific Railway tracks at a height of some 35 feet above the ground.
Unknown to the plaintiff, the surface of the roadway at the place where this turn occurs was slippery
(there were statements that it was icy), and instead of his car making the turn, it continued straight
ahead over a wooden curb, across a 6-foot sidewalk and through a guardrail, plunging to the ground
below.
The plaintiff contends that the defendants knew that, at the temperatures then existing, the roadway
at this point might be icy, and that no adequate warning of the potentially dangerous situation was
1

given. The defendants respond that plaintiff was familiar with the roadway and that a posted speed
of 10 miles per hour was ample notice that more than ordinary care was required. (The defendants
contend that had plaintiff obeyed that speed limit his car would not have gone over the curb, across
the sidewalk and through the guardrail.)
We said in Barton v. King County, 18 Wash.2d 573, 576, 139 P.2d 1019, 1021, after reviewing a number of
our cases:

1. The city and the railway company raise no question as to their joint liability, if there is any liability.
24 | Introduction to Negligence

The gist of the de cisions in these cases … is that the municipality may be chargeable with
negligence for failure to maintain warning signs or barriers If the situation along the highway
is inherently dangerous or of such character as to mislead a traveler exercising reasonable
care.
We e xpress no view as to the merits of the present controversy; we are simply saying: (1) that a jury
could find the situation at the locus in quo was inherently dangerous, or of such a character as to have
misled a traveler exercising reasonable care; and (2) if the jury should so find, then the adequacy of the
warnings given and of the barriers (curbs and guardrails) maintained would likewise be a jury question
and not an issue to be determined on summary judgment.
The plaintiff urges that the poste d speed of 10 miles per hour gave no notice of slippery or icy
conditions; he urges further that instead of a 10 or 12-inch curb, as on the rest of the incline, constant
hitting of the curb where his car ‘climbed’ it had ‘chewed’ it down to an effective height of only 3 or 4
inches; and that his car, at its speed of 10 miles an hour, would not have gone over an adequate curb.
The plaintiff contends that a car traveling 10 miles an hour or less can be successfully halted by
relatively low-cost barriers, and that the history of similar accidents at this particular point indicated
a need for more substantial barriers. The defendants respond that Davison v. Snohomish County, 149
Wash. 109, 270 P. 422 (1928), held that a municipality is under no duty to erect a guardrail of sufficient
strength to keep an automobile from crashing through.
The precise holding in that case was that a municipality is under no duty to erect barriers sufficient
to prevent automobiles traveling at a high rate of speed from crashing through. Our disposition of
the present case is not intended to overrule that holding. It is obvious that the erection of barriers
sufficient to prevent a speeding vehicle from crashing through could result in injuries as serious as
those that would be suffered if the vehicle were to crash through a weaker barrier and collide with
whatever lay beyond. Such would not be the case where a barrier is erected to stop slow-moving
vehicles from plunging off a bridge 35 feet above the ground.
The reasoning in Davison [c] was based on the impracticality as a matter of engineering and on
prohibitive costs. We do not consider the ideas of the court, expressed 40 years ago, as necessarily
authoritative on the e ngineering and financial phases of the same problem today. We are satisfied
that the parties should have the opportunity of presenting their evidence as to the practicality (cost
wise or otherwise) of guardrails or barriers on dangerous or misleading roadways to stop slow-moving
vehicles.
We would in no way derogate from the summary judgment as a proper and valuable instrument for
preventing useless trials; but it should not be use d, as in the present case, where a real doubt exists as
to decisive factual issues.
The summary judgment appealed from is set aside with directions to proceed as though it had been
denied.
Note 1. Revisit your statement of the holding in Davison. What do you notice about how Bartlett frames
that earlier case?
Introduction to Negligence | 25

Note 2. What is the holding in this case? Who wins, and what do they win?
Note 3. To what extent is the plaintiff’s behavior or knowledge relevant in Davison and Bartlett? What
accounts for that, in your view?
In the following opportunity to assess your own understanding, be aware that you are gaining an
introduction to the elements of negligence law. Reading the questions and answers will help you
deepen your own understanding as well as confirming what you have

already understood. The

questions are designed to teach you, in other words, in addition to reinforcing what you have le arned.

Expand On Your Understanding – Essay: Bartlett v. Northern Pac. Ry. Co. & City of Tacoma

Essay: Identify two ways in which Bartlett distinguishes its ruling from Davison and identify reasons it
supplies for doing so.

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=25#h5p-4

Hypothetical: Introducing Negligence and the Reasonable Person
Standard
In law school, when you are instructed in “the law” (or “the black le tter law”) you are usually learning
to read statutes or distilling rules from the common law. But in legal practice, for litigators at least,
the black letter law is often represented by jury instructions.
Jury “instructions” are the words read to a jury prior to their deliberation. In contemporary trials,
such instructions may sometimes also be provided in print or on a screen so that juries can refer
back to them when deliberating. The instructions are also some times referred to as the “charge”, as
in “charging” or “instructing” the jury in the proper law to apply. These instructions include standard
messages about the rules of evidence that are the same from case to case, as well as more precise
statements of the law tailored to the facts of the case.
Traditionally, jury instructions have not frequently been taught in law school or featured centrally in
legal casebooks. This may be partly due to the fact that, at least traditionally in the 20th century, many
law professors had no practice e xperience. In addition, there has be en a growing consensus that trials
26 | Introduction to Negligence

are less and less common (and thus less important). Yet jury instructions continue to play an important
role in the contemporary legal world. Trial lawyers tackling new litigation often start by looking at the
existing jury instructions in the relevant area of law so as to understand how they will need to frame
the the ory of the case. A given jurisdiction may maintain and update a se t of “model” or “pattern jury
instructions” which act as templates that the parties can adapt. The substance of these instructions
is often hotly contested since many lawyers believe that the way the law is framed and articulated for
the jury can play a key part in persuading the jury. (Usually, a case goes to full trial with a jury only if a
significant part of the dispute is riding on some factual aspect. Otherwise, a court can resolve issues
as a matter of law and a jury may never be needed.) Even in cases that never go to trial, however, the
jury instructions provide guidelines for how both sides will shape their arguments and may play a role
in forcing settlement, too.
In any event, when considering the substantive law on a given topic, if you inquire into the relevant
jury instruction you are likely to be thinking like a litigator. The ne xt hypothetical revisits negligence
and asks you to apply a jury instruction to a fact pattern.

Building-Crashing Driver Hypothetical #1: A driver crashed into a building. This accident caused
damage to the building property, including breaking the glass door and merchandise inside a bike
shop on the premises.
The bike shop owner was inside, and he sustained injuries because of the accident. The bike shop
owner asks you, a practicing attorney, whether he can sue the driver. The facts are deliberately
simplified at this point, and you don’t yet have the elements of various causes of action, but work
from your common sense and what you know so far including your present understanding of the
elements of negligence: duty, breach, causation and harm.
Step 1. What do you want to know? What questions would you ask?
Step 2. Now assume that this dispute proceeded to a jury trial and that the judge would instruct the
jury to determine negligence using the following standard.
Negligence is the doing of something which a reasonably prudent person would not do, or the
failure to do something which a reasonably prudent person would do, under circumstances
similar to those shown by the evidence. It is the failure to use ordinary or reasonable care.
Ordinary or reasonable care is that care which persons of ordinary prudence would use in
order to avoid injury to themselves or others under circumstances similar to those shown by
the evidence.
What would you want to know if you were a jury tasked with this determination?

The next case illustrates how a court may engage in the determination of reasonableness.

Introduction to Negligence | 27

Fox v. Town of Glastenbury, Supreme Court of Errors of Connecticut
(1860)
(29 Conn. 204)
Action [***] with regard to highways and bridges, brought by the plaintiff [Henry on behalf of the
estate] of Harriet Fox, to recover damages for the loss of her life by reason of the negligence of the
defendants in not maintaining a railing along the sides of a causeway, which was a part of a public
highway of the town. [***] The jury rendered a verdict for the plaintiff, and the defendants moved for
a new trial for a verdict against evidence.
We have no intention to disturb the current of our decisions in regard to the granting of new trials for
verdicts against evidence. Nor do we me an to say that the highway on which this deplorable accident
occurred, was not “so raised above the surface of the adjoining ground as to endanger the safety of
travelers,” nor that it was adequately protected by a fence or railing on its sides, as the law requires.
Rev. Stat., tit. 24, § 7. Indeed, a majority of us are of opinion that the town had been culpably negligent
in regard to such protection. But upon a very careful examination of the e vidence before us, we are
satisfied that, however negligent the defendants may have be en, the unfortunate woman who lost
her life, essentially contributed to the production of that result by her own culpable imprudence and
indiscretion; so that upon the well established principles of law, promulgated and recognized by this
court in many cases, the plaintiff was not entitled to the verdict which he obtained.
An inlet from Connecticut river, called the cove, runs up into the main land in the town of Glastenbury.
About twenty-seve
n rods from its mouth, a highway had been laid through this cove

to the

Wethersfield ferry, and a causeway constructed thereon for the accommodation of the public travel.
[***] The water in the cove, along the sides of the causeway, was ordinarily about one foot deep, but
in times of freshet it frequently rose so high as to submerge the causeway, and render its passage
perilous and sometimes impossible.
[***] The de ceased and her companion, Mrs. Clarinda Fox, had for several years resided about half a
mile from the e ast end of the causeway, and one of them, at least, had repeatedly crossed it. About
three o’clock in the afternoon of the 6th of August, 1856, having procured a horse and wagon, they
started to go over the causeway, from the main land to the ferry. There was a freshet in the river, and
the water had in consequence rise n in the cove so as to cover the causeway, was rising rapidly, and
there was a strong wind.
The de ceased and her companion stopped in front of the house of Mrs. French, a short distance from
the causeway, but in full view of it, and there observed that the water was running over the causeway,
and that the wind was high. The de ceased inquired of Mrs. French whether people crossed there that
day, to which Mrs. F. replied that they had, but that she had se en no one pass that way that afternoon,
and that she had not before noticed that the water was over the road. The de ceased then inquired of
Mrs. F. if she would dare to cross. Mrs. F. replied that she would be afraid, unless she had a very gentle
horse; and the deceased remarked that their horse was perfectly gentle.
We de em this conversation of some importance, because it shows that, while these ladies were
28 | Introduction to Negligence

encouraged to go on, by the information that others had passed before them, and by the fact that they
had a gentle horse, they were not be trayed into their perilous undertaking, either by the apparent
safety of the road, or by their own inattention to its condition, until it was too late to avoid it
altogether; and that when they were entirely beyond the reach of danger, and could, with but little
inconvenience, have avoided it, they deliberately determined to encounter and risk whatever of it
might beset their way.
As they approached the causeway, the cove and the condition of the water in it could not have escaped
their notice. They saw, and observed, that the causeway was entirely submerged, that a swift and
strong current of turbid water *207 was passing over it, that there was no rail or visible obje ct of any
kind, above the surface of the water, on the sides of the causeway, by which they could be protected
or guided in their course, and the depth of the water it was obviously impossible for them, before the y
went into it, with any degree of accuracy, to calculate or de termine. East of the bridge, the water rose
to the hubs of the fore whe els of their wagon, but they reached the bridge in safety. The bridge was
raised about two feet and a half above the le vel of the causeway. On the bridge the y stopped, noticed
and remarked upon the height of the water and the rapidity of its current, and felt some degree of
alarm, but concluded to proceed. As they drove from the bridge into the water on the west side of
it, they began to apprehend the extent of their danger, and became frightened; the horse stoppe d;
they urged him forward with the whip, and be coming more frightened they probably attempted to
turn around, and went off the causeway, nearly at a right angle with it, into the de ep water on the
north side. These facts seem to us fully proved by the e vidence. And we think that in driving upon the
causeway at all, even easterly of the bridge, submerged as they saw it was, and with nothing visible
above the surface of the water to indicate its true location, these ladies disregarded the dictates of
ordinary prudence and discretion.
And surely, when upon the bridge, in full view of the scene before them, and aware, as they must have
been, of the accumulated and increasing dangers in their path, and especially with the knowledge
which they then possessed of the impossibility of seeing the road, because of the turbid condition and
ruffled surface of the water, and the rapidity of its current, they determined to proceed, and drove
into the stream, their conduct was far below the standard of ordinary prudence. [***]
The bridge was twenty-four feet long, and fourteen feet wide be tween the railings. On this bridge the y
were safe; and if they could not, unaided, have turne d around and retraced their steps, they could,
and should have remained where the y *208 were, until relieved from their unpleasant but not perilous
situation. And again, when, after they had entered the water west of the bridge, their horse, true to the
instincts of his noble nature, faltered, and stood still, they should have he eded his kindly admonition,
and there waited for assistance and deliverance, instead of forcing the animal forward to his fate. The
boat, by means of which one of them was rescued, with two boys in it, was sailing close at hand; a
wagon, with two men in it, was approaching the causeway from the west; and the residence of Mrs.
French, with whom they had just been conversing, was within the reach of their voices. Their outcry
would have brought almost immediate relief.
In view of all the facts and circumstances disclosed by the e vidence de tailed upon this motion, we feel
constrained to say, that the attempt of these ladies to pass over this causeway, and especially over the
western part of it, was an act of rashness, which, upon the well settled principles of law applicable in
Introduction to Negligence | 29

cases of this character, bars all claims in their behalf for damages from the town. We think no person
of ordinary discretion in their circumstances, and exercising ordinary prudence and discretion, would
have made such attempt.
We are not unmindful of the fact urged upon our attention by the plaintiff’s counsel, that these
travelers were females. And in that fact, and in the timidity, inexperience, and want of skill which it
implies, we can find an explanation of their injudicious and fatal attempt to turn around in the water,
but no reason or excuse for the recklessness of their conduct in driving into it. It may be that in the
midst of the appalling dangers which surrounded them, judicious conduct was not to be e xpected, and
ought not to be required, but their error was in rushing into dangers which they had but too much
reason to expect, and ought to have anticipated and avoided. The inquiry whether, in the particular
case, the party conducted with ordinary care or prudence, always involves the consideration of the
difficulties and obstacles to be overcome, the party’s knowledge of their existence, and his means and
power to overcome them. And if men of ordinary prudence and discretion would regard the ability of
the party inadequate *209 for the purpose, without hazard or danger, the risk should not be assume d.
[***]
In order to entitle the plaintiff to a verdict, he was bound to show, affirmatively, not only the culpable
negligence of the town, but also that the de cedent herself conducted with ordinary prudence and
discretion. [***]
We think a new trial should be granted.
Note 1. How would you characterize the judicial de scription of the plaintiffs’ conduct? Note the
awkward phrase negating mindfulness: “We are not unmindful of the fact urged upon our attention
by the plaintiff’s counsel, that these travelers were females.” Does the court give that fact legal
significance or not?
Note 2. Why do you think the court relays the conversation the travelers had with Mrs. French, who
seemed to provide e vidence that the road might be passable ? How do you square it with the court’s
statement that “We think no person of ordinary discretion in their circumstances, and exercising
ordinary prudence and discretion, would have made such attempt”?
Note 3. Davison, Bartlett and Fox all involve cases brought against municipalities for injuries that can
be traced to the failure of railings or guardrails. The analysis in Fox passes very quickly over the
fault associated with highway’s maintenance: “[A] majority of us are of opinion that the town had
been culpably negligent in regard to such protection.” The reason for this focus is largely due to the
defense of contributory negligence which, at the time of this case, was a complete bar to the plaintiff’s
recovery. This meant that if the plaintiff was even slightly at fault, she couldn’t recover against the
defendant even if the defendant, too, was negligent. However, there are other factors that distinguish
this trio of cases as well. Can you think of additional ways to frame the cases so as to analogize and
distinguish them?
Note 4. Tort law traditionally referred to the “reasonable man” standard. What would he do under
the circumstances in which the defendant found himself and pursuant to which the plaintiff allegedly
was injured? Or as a plaintiff, what would he feel if someone at work were to have behaved in
30 | Introduction to Negligence

the suggestive manner the defendant did? This focus excluded how a woman would feel or act. In
some cases, courts actually drew distinctions between how carefully a man or woman might behave
under the circumstances, either finding that a woman would or should be more careful under the
same circumstances, or finding that no difference ought to be made e ven when the facts suggested
2

otherwise. (For more discussion of the role of gender and reasonableness, see Margo Schlanger,
Gender Matters: Teaching a Reasonable Woman Standard in Personal Injury Law, 45 St. Louis U. L. J.
769, (2001), Leslie Bender, A Lawyer’s Primer on Feminist Theory and Tort, 38 J. Legal Educ. 3, 22 (1998)).
Over time, courts increasingly began to refer to the reasonable person rather than the reasonable
man. Yet that did not go far enough in at least one area of law.
The tort law of workplace harassment—which consists of a mix of federal and state laws—remains
difficult for plaintiffs to use in fighting injuries suffered as a result of toxic employment environments.
However, winning sexual harassment cases became some what more feasible once courts stopped
downplaying the threats (and unwanted invitations) women experienced at work and began to take
their claims more seriously. Doing so, however, arguably required that courts shift from a reasonable
person standard to a reasonable woman standard.
In Ellison v. Brady, 924 F.2d 872, 878-9 (9th Cir. 1991), the Ninth Circuit adopted the perspective of the
“reasonable victim”:
If we

only e
xamined whether a reasonable person would engage in allegedly harassing

conduct, we would run the risk of reinforcing the prevailing level of discrimination. Harassers
could continue to harass merely because a particular discriminatory practice was common,
and victims of harassment would have no remedy.
We therefore

prefer to analyze

harassment from the

victim’s perspective
. A complete

understanding of the victim’s view requires, among other things, an analysis of the different
perspectives of men and women. Conduct that many men consider unobjectionable may
offend many women. See, e.g., Lipsett v. University of Puerto Rico, 864 F.2d 881, 898 (1st Cir.
1988) (“A male supervisor might believe, for example, that it is legitimate for him to tell a female
subordinate that she has a ‘great figure’ or ‘nice legs.’ The female subordinate, however, may
find such comments offensive”); Yates, 819 F.2d at 637, n. 2 (“men and women are vulnerable in
different ways and offended by different behavior”).
We realize that there is a broad range of viewpoints among women as a group, but we believe
that many women share common concerns which men do not necessarily share. [fn] For
example, because women are disproportionately victims of rape and se xual assault, women

2. It is worth noting at the outset of your studies that tort law is capricious that way; often the same issue can come out
differently in different jurisdictions or on the basis of minor factual differences that seem as though they ought to be
trivial rather than dispositive of the case. It frustrates students who would like for it to be more orderly or predictable.
In looking for the rule on a given issue, casebooks sometimes give one rule for Virginia and a different rule for its
neighboring state of North Carolina. As a law student, I recall finding this extremely frustrating; as a law professor, I try
to put students on notice that this will be the case, and to explain how it reflects tort law’s commitment to resolution of
certain issues at the community level, permitting jurisdictions, and lay decision making, on many important issues.
Introduction to Negligence | 31

have a stronger incentive to be concerned with sexual behavior. [fn] Women who are victims
of mild forms of sexual harassment may understandably worry whether a harasser’s conduct
is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault,
may view sexual conduct in a vacuum without a full appreciation of the social se tting or the
underlying threat of violence that a woman may perceive.
The court seems to have had to conceptualize the reasonableness standard in terms of gender
simply to arrive at a conclusion that seems—in 2021—perhaps obvious: that in the workplace, telling
a subordinate at work that they have nice body parts is inappropriate, especially when doing so
repeatedly or in the context of a hierarchical or supervisory relationship.
Notice, however, the way in which the analysis centers on victimhood. Are there ways to expand the
judicial imagination towards greater empathy and understanding of sociological difference without
casting the

plaintiff in terms of a victim? Can power structures be acknowledged and made

transparent using different rhetoric, or in a way that emphasizes different aspects of a legal rule?
In addition, in departing from the “reasonable person” standard in favor of the “reasonable woman”
standard, Ellison relies on the justification that the

reasonable person might ignore or tolerate

conduct that was intolerable to the reasonable woman, which would thus “run the risk of reinforcing
the prevailing level of discrimination.” In a sense, this is the risk of “crowdsourcing” reasonableness. By
considering reasonableness as an objective standard most of the time—which means generalizing it to
some le vel of conduct rather than particularizing it to the party before the court—we aim to capture
community mores and values.
When might departures from this practice justified? Should the standard be particularized in gender
discrimination cases only? What about racial discrimination cases? If labor and employment disputes
in tort law fall most heavily on those with lower socioeconomic status, or on particular ethnicities,
should those be taken into account? What role should demographics play in setting the standard for
reasonableness?
Finally, though it was a substantive win for feminism as well as the plaintiff at bar, Ellison is not the
first or the last time the judiciary essentialized gender, even if aiming at a progressive outcome. By
using the “reasonable woman” standard, Ellison may have inadvertently made it more difficult for
those whose ide ntity does not conform with traditional gender categories but who might otherwise
be facing similar patterns of discrimination. As gender identity becomes more widely acknowledged as
non-binary or fluid, what responsibility do legislators, lawyers and judges have, if any, to take account
of this expanding awareness of the social constructedness of identity?

Building-Crashing Driver Hypothetical # 2: Recall the facts of the earlier hypothetical in which a
driver crashed into a building, causing property damage and physical injuries. You were asked to
consider the reasonable person standard and what you might need to know to determine whether
the bike shop owner could bring an action against the driver.

32 | Introduction to Negligence

Now you are told that the driver was epileptic and had been suddenly rendered unconscious at the
wheel mere seconds before he crashed into the building.
Once again, the bike shop owner asks you, a practicing attorney, whether he can sue the driver.
Recall that the elements of negligence are duty, breach, causation and harm. What would you now
want to know in order to determine whether an action might be available against the driver?

Introduction to Negligence | 33

3. Introduction to Strict Liability
Strict liability is a regime in tort law in which neither fault nor intent is relevant to liability: the actions
that caused injury were of a particular kind so dangerous, or for other reasons deemed so risky, that
courts or legislators have de cided to classify the conduct as a strict liability activity. A plaintiff merely
needs to prove that the defendant acted in such a way that caused the plaintiff’s injuries: the elements
are action, causation, and harm. In theory then, this looks simple; in practice, it can be more complex,
either because a factual question exists as to whether the action properly falls within a category of
behavior deemed strict liability or because the que stion is one “of first impression”–never decided by
this court before—and a court must newly decide how to categorize this ne w form of behavior or risk.
Often when faced with such a question, courts and legislatures look to existing categories of actions
subject to strict liability. For example, ownership of wild animals is strict liability (and in many
jurisdictions, even dog bites are treated under strict liability). Uses of dynamite and other forms of
“ultrahazardous activity” fall under strict liability in most instances, and in some jurisdictions, this
means that firework displays are governed by strict liability. Students are some times surprised to
learn that gun use and manufacture are not subject to strict liability. Finally, one kind of product
liability action is generally considered under strict liability, as you’ll learn if your course covers
products liability later in the term. Courts may analogize the conduct in question to one of those
existing categories. In evaluating whether an action should be categorized as strict liability courts
may also consider the level and kind of risks the action poses versus the benefits that flow from
such action (or from the use of such a product, in product liability cases). Policy determinations
about the possibilities for innovation may depend on tort law’s fact-sensitive capacity for balancing
the benefits and risks to various different stakeholders. These policy questions become especially
salient with respect to emerging technologies which often seem to carry great promise but also come
with unknowns regarding how they will be integrated into society and how their risks will be fully
discovered and managed.
What are your intuitions about the proper balance when it comes to regulating new technologies?
As a normative question, consider whether you think driverless cars, drones or highly immersive
games such as Pokémon GO should be subje ct to strict liability. Descriptively, numerous regulatory
provisions at the state and federal level already cover some aspects of these technologies but it’s
worthwhile to think, in this introductory module, about what you think as a policy matter is a sound
answer for tort law, and why.

Introduction to the Restatements
As courts and legislatures reflect on these issues, they often turn to an important resource called the
Restatement of Law. There are four Restatements for tort law: The Restatement Third of Torts: Liability
for

Physical

and

Emotional

34 | Introduction to Strict Liability

Harm (2010/2012), Apportionment

of

Liability (2000), Products

Liability (1998), and Liability for Economic Harm (2020). You can learn more about them here:
https://www.ali.org/publications/show/torts/ or search online

for general discussions of them.

They are descriptions of existing black-letter law, drafted by practitioners, academics and judges
in committees that spend years contributing to making these extensive records of the law. The
Restatements predated the widespread availability of legal databases that have

since

made

researching national law comparatively easy. Before such databases were available, it was often hard
to locate and survey “court reporters,” which were e xpensive, heavy tomes not necessarily organized
in uniform or consistent ways. The Restatements provided an efficient means of learning the contours
of an area of law in many jurisdictions at once. Even in the era of databases, however, the Restatements
have remained useful in their capacity to provide reliable summaries of the law along with extensive
examples and comments.
The Restatements—as their name implies—are me ant to restate or summarize the law, descriptively.
In some areas of law, including torts, they grew more prescriptive or normative. Instead of expressly
trying to state what the law simply “was” for instance, the drafters of the Restatement on Products
Liability added to its summaries of the law their recommendations for what the law “should be,
ideally.” (This distinction provides an example of why it’s helpful to learn to distinguish between
descriptive and normative statements of law.) Restatement Third is not yet completed so you may see
courts, treatises and this casebook refer to provisions of either the Second or the Third at different
points. Various controversies have arisen with respect to some of the positions taken by the drafters
of the Third Restatement. Judicial opinions sometimes reflect this by stating that they will retain the
rule of the Se cond rather than adopting the Third on a given issue. Armed with this basic background
on the Restatements of law, you are now in a better position to understand the role the y play in the
formation of strict liability law, especially in the last case in this section, Toms v. Calvary, below.

Questions for the Readings
As you read the next two cases, please keep the following questions in mind:
• When is strict liability applicable?
• Why does policy dictate the imposition of strict liability in some instances, but not in others?
• What does this tell us about tort law’s deeper purposes?
A note about confusing terminology in the next case: Respondent Halsett is considered a “licensor”
of laundry equipment because he allows customers of his laundromat to enter his property and use
his machines. Petitioner Garcia is a “licensee.” The court makes reference to an argument that’s been
omitted here for length and clarity, in which Halsett tried to argue that Garcia was a “bailee” of the
defective washing machine. The court dismisses that theory, which was Halsett’s attempt to argue
that the young injured boy should have borne responsibility for the operation of Halsett’s commercial
washing machine.

Introduction to Strict Liability | 35

Garcia v. Halsett, Court of Appeals of California, First App. Dis., Div.
Three (1970)
(3 Cal.App.3d 319)
The plaintiffs appeal from a judgment in favor of the defendant following a jury trial. On July 19, 1962
the appellant, Arthur Garcia, an 11-year old boy, was injured in respondent’s Happy Coin Launderette
in San Jose. Respondent had owned the business since 1959. Launderette Sales designed the store
layout and sold and installed all of the e quipment. Respondent had nothing to do with the design of the
store or with installation of the e quipment. The facilities of the launderette include d four rows of coin
operated washing machines. The machines were Philco-Bendix, front-loading, commercial washers.
These machines have a washing cycle, three rinse cycles, two spin cycles, and one long extraction
cycle. The last of these cycles is a spin cycle lasting 4 1/2 of 5 minutes, during which the tub of the
machine obtains a velocity of 370 revolutions per minute. The entire procedure lasts 30 minutes.
At the time of the accident, the machines were e quipped with a circuit breaker, or reset button. The
circuit breaker is a fuse, and has one purpose only: In the e vent of a short in the machine, or of a motor
overload, which would create a he avy draw of current and consequently constitute a fire *322 hazard,
the circuit breaker will break the circuit and stop the machine completely. If the circuit breaker button
is depressed while the machine is running, it will stop the machine. However, the moment that the
button is released the machine will start operating again. The circuit breaker is not used to stop the
machine manually. Respondent testified that the manufacturer did not intend that this button should
be used to stop a machine in order to reach into the loaded machine.
The appellant, Arthur Garcia, had been instructed by his mother as to how to run the machines and
had been going there to wash clothes about once a week. He had also read the poste d instructions
regarding the loading of the machine . The uncontradicted testimony of the appellants establishes
that the accident took place in the following manner: On the date of the accident, Arthur went to
the Happy Coin Launderette with his 10-year old brother to do some laundry. When he entered
the launderette, he looked for available machines, and found machines 1 and 2 at the far end of the
launderette. On prior occasions when he went to the launderette, he always used this same type of
washing machine. He took a portion of the clothes and put them in machine No. 1, and then inserted
a quarter and started the machine. He then went to machine No. 2, put in the balance of the laundry,
inserted a quarter, and started the se cond machine. Both machines started. In accordance with the
posted instructions, he put soap in each machine, and began to read a magazine.
While he was sitting there, machine No. 2, the machine which he had started second, stopped. He
actually saw the machine stop. Prior to that time , the machine had be en spinning. He had se en it
spinning through the window in the machine . The water had all drained out and it was clean; he could
see through the window in the washer. After machine No. 2 stopped, he waited until machine No. 1
stopped, three or four minutes later. He unloade d the clothes from machine No. 1. During this time
machine No. 2 was stopped. He then went to machine No. 2 and began removing the clothes.
The first batch of clothes he pulled out of machine No. 2 were ‘all dry, like spin dry’. When he inserted
36 | Introduction to Strict Liability

his hand into the machine the se cond time , the machine made a funny noise and started up fast. When
the machine started up, his arm became entangled in the clothing. His arm was twisted around and
he himself was twisted around until he had his back to the machine.
Respondent Halsett testified that upon hearing Arthur’s screams he came out of the office at the rear
of the launderette. The quickest thing he could think of to do under the circumstances was to pull
the plug, *323 which is located at the back of the machine. In orde r to pull the plug, he had to go
over the top of the machine and reach down in back. He could have depressed the reset button, but
as soon as one le t go of the button, the machine would start up again. When respondent returned to
the launderette, after having taken Arthur home, he plugged in machine No. 2, and at that time the
machine was in its fast spin cycle. Respondent also testified that he thought the washing machine
in question was perfectly safe and had all the safety features that were required. However, he also
testified that the machine did not have a micro switch and that they were not available at that time.
A micro switch is a sensitive, pressure-activated switch which is placed across the main electrical
circuit of the machine. It serves as a safety device. When activated, by opening the door, it completely
shuts off the electricity going through the machine . The purpose of the micro switch is to prevent
the machine from operating when the door is opened. Respondent admitted that if such a switch had
bee n on the machine on the date of the accident, the machine could not have started spinning when
Arthur opened the door and inserted his arm.
Micro switches sell for around $2.00. Shortly after the accident respondent obtained 12 of these micro
switches and installed them himself on the machines. Experts for both appellants and respondent
testified that micro switches had been on the market for a number of years. Appellants’ expert
witness, an experienced appliance

de aler, testified that, in his opinion, the

washing machine

in

question was defective be cause, first, the timing me chanism was defective, and, second, a 1958 Bendix
commercial washer manufactured without a micro switch would be defective. If the machine was
manufactured without a micro switch, a switch could be purchased and installed. This machine was
defective be cause it did not have a micro switch on it. Other Philco-Bendix machines manufactured
as early as 1952 had micro switches. Machines produced by other manufacturers have micro switches
which serve as safety switches. Appellants’ expert witness also testified, in effect, that wear and tear
resulting from years of use may result in a timer becoming faulty, thus causing the machine to stop
during a cycle and then start again when the machine is jarred or the door opened.
The appellants contend that the trial court committed reversible error in that it refused to give the
instructions offered by appellants on (1) bailment, and (2) strict liability.
[***] There is no question raised as to the form of the instructions, only as to their applicability. The
appellants’ contention is without merit since the facts do not establish a bailment of the washing
machine. [***] In order to constitute a bailment, possession of the article baile d must be given
1

or delivered to the baile e. [cc] Appellants contend that appellant Arthur had at least constructive

1. Editor’s note: “Constructive” is a term of art that indicates that the law will make an assumption, regardless of the truth.
Constructive possession would mean that whether or not Arthur actually possessed the machine, he could, for legal
Introduction to Strict Liability | 37

possession of the washing machine during the time he was using it. However, this argument is also
without merit. Appellant Arthur assumed no responsibility for the safekeeping of the machine, and did
not have the right to remove it or tamper with the me chanical parts of the washer. Appellant Arthur
merely acquired a lice nse to use the washing machine and was not a bailee. [c] Since respondent could
have prevented appellant Arthur from using the washing machines, and respondent impliedly gave
Arthur permission to use them, Arthur merely had a license and cannot be considered a bailee of the
machines.
The appellants submitted proposed jury instructions on the issue of strict liability in tort which the
court refused to give. Again, there is no contention that the form of the instructions was incorrect.
and (2) strict liability. *324 … there is no contention that the form of the instructions was incorrect.
Appellants contend that … the

doctrine

of strict liability is applicable

to the

instant case. This

contention is correct, and instructions on strict liability should have been given by the court.
Strict liability applies to the manufacturer of chattels which cause personal injury. (Greenman v. Yuba
Power Products, Inc., 59 Cal.2d 57, 63 1049.) This liability *325 has been extended to retailers and
distributors of chattels. (Vandermark v. Ford Motor Co., 61 Cal.2d 256, 262—263.) In the recent case of
McClaflin v. Bayshore Equipment Rental Co., 274 A.C.A. 487, strict liability was imposed upon the lessor
of a chattel. In McClaflin, plaintiff’s decedent rented a ladder from defendant and subsequently died
from injuries received when the leg of the ladder cracked, and decedent fell from it.
The precise legal relationship between the parties has not played a particularly significant role in
the cases imposing strict liability. The court in McClaflin stated [c]: ‘The Greenman rule, moreover,
extends its protection to the injured party without reference to the role he played, or even if he
played none, in the transaction wherein the defective chattel was acquired from its purveyor. He can
be a retail buyer (Greenman v. Yuba Power Products, Inc., supra [c]), a member of the buyer’s family
(Vandermark v. Ford Motor Co., supra [c]), the buyer’s employee (Casetta v United States Rubber Co.
(1968), 260 Cal.App.2d 792, 795), or a ‘mere bystander’ totally unconnected with the chattel’s purveyor
except as an ultimate victim. (Elmore v. American Motors Corp., supra, 70 A.00 C. 615, 618, 623—624.)’
Respondent’s argument would exclude from the protected class a person who has a lice nse to use a
product but has no control over it. Appellants’ position in the present case is some what analogous
to that of the innocent bystander protected in Elmore v. American Motors Corp., 70 Cal.2d 578, 75
Cal.Rptr. 652. Appellant Arthur in the present case did not have control over the washing machine, or
have the opportunity to inspect it for mechanical defects other than those which would be obviously
apparent. In this regard, appellant Arthur is actually in a worse position than a retail buyer or member
of the buyer’s family, who arguably have an opportunity to inspect a product before buying and using
it. Appellant Arthur’s only choice was to pick, at random, a washing machine provided by respondent
for use by the public. The fact that he picked one that may have had a latent defect should not bar his
recovery for injuries sustained when the machine malfunctioned.

purposes, be assumed to be a possessor. The court immediately rejects this idea but the word “constructive” will return
later in the course as a way of signaling that the law is making an assumption or relying on a legal fiction for particular
purposes.
38 | Introduction to Strict Liability

Licensors of personal property, like the manufacturers or retailers or lessors thereof, ‘are an integral
part of the overall * * * marketing enterprise that should bear the cost of injuries resulting from
defective products.’ [authorities omitted] *326 Although respondent is not engaged in the distribution
of the product, in the same manne r as a manufacturer, retailer or lessor, he does provide the product
to the public for use by the public, and consequently does play more than a random and accidental
role in the overall marketing enterprise of the product in question. Thus, the rationale of Greenman
and Vandermark applies as logically and desirably to a licensor of chattels as to the manufacturers,
retailers and lessors thereof. The trial court should have instructed on the issue of strict liability.
Respondent contends that there is no e vidence of a defect and thus strict liability is not applicable
in this case. However, it is well settled that a defect may be established by circumstantial evidence.
[cc] The facts summarized above demonstrate that there was ample e vidence from which it could be
concluded that the machine in question was defective.
The judgment is reversed.
Note 1. Why does the court address “the precise legal relationship between the parties”?
Note 2. Does the court hold that there was a defect? What do you think is the legal significance of this
issue and who decides it?
Note 3. In the era in which this case was decided, there were hundreds of laundromats in greater San
Francisco. This site claims that in 1966 there were ne arly 500, compared with fewer than 100 in 2016:
https://hoodline.com/2017/05/trend-analysis-san-francisco-is-losing-its-laundromats
Generally, significantly fewer single-family homes owned their own laundry machines in large cities,
compared with today’s rates. If laundromats were a primary way that urban households did their
laundry, a ruling on the liability for machine defects carried substantial implications. I have be en
unable to find data on the plaintiff, and it would be a mistake to infer very much from the surname,
Garcia. However, we know that the plaintiff was a young male and the name “Garcia” suggests he may
have be en of color. Moreover, we know that his family depended on the laundromat and on his efforts
there for the household. Do you think any of these factors were taken into account by the court?
Normatively, do you think they should be in cases like this one?

Check Your Understanding – Set 3

An interactive H5P element has been excluded from this version of the text. You can view it online

Introduction to Strict Liability | 39

here:
http://saidtorts.lawbooks.cali.org/?p=27#h5p-5

Note: The following case is a classic tort law case featuring explosives that cause injury to animals,
specifically mink kittens. It illustrates an important set of points about the applicability and scope
of strict liability but it’s not going to garner much love from readers who are also animal lovers.
In the case, you will see references to a theory of tort liability associated with the use of land,
called “nuisance.” A person may be found liable for nuisance base d on unreasonable or unlawful use
of their property in a manner that substantially interferes with the enjoyment or use of another’s
property. It can accompany a trespass or be separate from it; odors or sounds, for instance, that travel
across property lines, can count. Private nuisance affects the possessor or owner of property; public
nuisance affects the community as a whole. The case presents nuisance only as an alternative the ory
but you may still find it helpful to have that definition upfront.

Foster v. Preston Mill Co., Supreme Court of Washington (1954)
(44 Wash.2d 440)
Blasting operations conducted by Preston Mill Company frightened mother mink owned by B. W.
Foster, and caused the mink to kill their kittens. Foster brought this action against the company to
recover damages. His second amended complaint, upon which the case was tried, sets forth a cause
of action on the the ory of absolute liability, and, in the alternative, a cause of action on the the ory of
nuisance.*441 After a trial to the court without a jury, judgment was rendered for plaintiff in the sum
of $1,953.68. The the ory adopted by the court was that, after defendant received notice of the effect
which its blasting operations were having upon the mink, it was absolutely liable for all damages of
that nature thereafter sustained. The trial court concluded that defendant’s blasting did not constitute
a public nuisance, but did not expressly rule on the que stion of private nuisance. Plaintiff concedes,
however, that, in effect, the trial court decided in defendant’s favor on the question of nuisance.
Defendant appeals.
Respondent’s mink ranch is located in a rural area one and one-half miles east of North Bend, in
King county, Washington. The ranch occupies seven and one half acres on which are located seven
sheds for growing mink. The cages are of welded wire, but have wood roofs covered with composition
roofing. The ranch is located about two blocks from U. S. highway No. 10, which is a main eastwest thoroughfare across the state. Northern Pacific Railway Company tracks are located between

40 | Introduction to Strict Liability

the ranch and the highway, and Chicago, Milwaukee, St. Paul & Pacific Railroad Company tracks are
located on the other side of the highway about fifteen hundred feet from the ranch.
The period of each year during which mink kittens are born, known as the whelping season, begins
about May 1st. The kittens are born during a period of about two and one-half weeks, and are left
with their mothers until they are six weeks old. During this period, the mothers are very excitable. If
disturbed by noises, smoke, or dogs and cats, they run back and forth in their cages and frequently
destroy their young. However, mink become accustomed to disturbances of this kind, if continued
over a period of time. This explains why the mink in question were apparently not bothered, even
during the whelping season, by the he avy traffic on U. S. highway No. 10, and by the noise and vibration
caused by passing trains. There was testimony to the effect that mink would even become accustomed
to the vibration and noise of blasting, if it were carried on in a regular and continuous manner.
*442 Appellant and several other companies have be en engaged in logging in the adjacent area for
more than fifty years. Early in May, 1951, appellant began the construction of a road to gain access
to certain timber which it desired to cut. The road was located about two and one-quarter miles
southwest of the mink ranch, and about twenty-five hundred feet above the ranch, along the side
of what is known as Rattle-snake Le dge. It was necessary to use e xplosives to build the road. The
customary types of explosives were use d, and the customary methods of blasting were followed. The
most powder used in one shooting was one hundred pounds, and usually the charge was limited to
fifty pounds. The procedure use d was to set off blasts twice a day-at noon and at the end of the work
day.
Roy A. Peterson, the manager of the ranch in 1951, testified that the blasting resulted in ‘a tremendous
vibration, is all. Boxes would rattle on the cages.’ The mother mink would then run back and forth in
their cages and many of them would kill their kittens. Peterson also testified that on two occasions the
blasts had broken windows. Appellant’s expert, Professor Drury Augustus Pfeiffer, of the University of
Washington, testified as to tests made with a pin seismometer, using blasts as large as those use d by
appellant. He reported that no effect on the delicate apparatus was shown at distances comparable
to those involved in this case. He said that it would be impossible to break a window at two and onefourth miles with a hundred-pound shot, but that it could cause vibration of a lightly-supported cage.
It would also be audible. Charles E. Erickson, who had charge of the road construction for appellant
in 1951, testified that there was no glass breakage in the portable storage and filing shed which the
company kept within a thousand feet of where the blasting was done. There were windows on the roof
as well as on the sides of this shed.
Before the 1951 whe lping se ason had far progressed, the mink mothers, according to Peterson’s
estimate, had killed thirty-five or forty of their kittens. He the n told the manager *443 of appellant
company what had happened. He did not request that the blasting be stoppe d. After some discussion,
however, appellant’s manager indicated that the shots would be made as light as possible. The amount
of explosives used in a normal shot was then reduced from nineteen or twenty sticks to fourteen
sticks. Officials of appellant company testified that it would have be en impractical to entirely cease
road-building during the se veral weeks required for the mink to whelp and wean their young. Such
a delay would have made it necessary to run the logging operation another season, with attendant
expense. It would also have disrupte d the company’s log production schedule and consequently the
Introduction to Strict Liability | 41

operation of its lumber mill. In this action, respondent sought and recovered judgment only for such
damages as were claime d to have be en sustained as a result of blasting operations conducted after
appellant received notice that its activity was causing loss of mink kittens.
The primary question presented by appellant’s assignments of error is whether, on these facts, the
judgment against appellant is sustainable on the theory of absolute liability.
The modern doctrine of strict liability for dangerous substances and activities stems from Justice
Blackburn’s decision in Rylands v. Fletcher, 1 Exch. 265, decided in 1866 and affirmed two years later in
Fletcher v. Rylands, L.R. 3 H.L. 330. Prosser on Torts, 449, § 59. As applied to blasting operations, the
doctrine has quite uniformly been held to establish liability, irrespective of negligence, for property
damage sustaine d as a result of casting rocks or other debris on adjoining or neighboring premises.
[cc]
There is a division of judicial opinion as to whether the doctrine of absolute liability should apply
where the damage *444 from blasting is caused, not by the casting of rocks and debris, but by
concussion, vibration, or jarring. 92 A.L.R. 741, annotation. This court has adopted the vie w that
the doctrine applies in such cases. In the Patrick case, it was held that contractors who set off an
exceedingly large blast of powder, causing the e arth for a considerable distance to shake violently,
were liable to an adjoining owner whose well was damaged and water supply lost, without regard to
their negligence in setting off the blast, although there was no physical invasion of the property. [cc]
However the authorities may be divide d on the point just discussed, they appear to be agreed that
strict liability should be confined to consequences which lie within the e xtraordinary risk whose
existence calls for such responsibility. Prosser on Torts, 458, § 60; Harper, Liability Without Fault and
Proximate Cause, 30 Mich.L.Rev. 1001, 1006; 3 Restatement of Torts, 41, § 519. This limitation on the
doctrine is indicated in the italicized portion of the rule as set forth in Restatement of Torts, supra:
‘Except as stated in §§ 521-4, one who carries on an ultrahazardous activity is liable to another
whose person, land or chattels the actor should recognize as likely to be harme d by the
unpreventable miscarriage of the activity for harm resulting thereto from that which makes
the activity ultrahazardous, although the utmost care is e xercised to prevent the harm.’ (Italics
supplied.) This restriction which has been placed upon the

application of the

doctrine

of

absolute liability is based upon considerations of policy. As Professor Prosser has said:
‘* * * It is one thing to say that a dangerous enterprise must pay its way within reasonable limits, and
quite another to say that it must bear responsibility for every extreme of harm that it may cause. The
same practical necessity for the restriction of liability within some reasonable bounds, which arises in
connection with problems of ‘proximate cause’ in negligence cases, demands here that some limit be
set. * * * This limitation has been expressed by saying *445 that the defendant’s duty to insure safety
extends only to certain consequences. More commonly, it is said that the defendant’s conduct is not
the ‘proximate cause’ of the damage. But ordinarily in such cases no question of causation is involved,
and the limitation is one of the policy underlying liability.’ Prosser on Torts, 457, § 60.
Applying this principle to the case before us, the que stion comes down to this: Is the risk that any

42 | Introduction to Strict Liability

unusual vibration or noise may cause wild animals, which are being raised for commercial purposes,
to kill their young, one of the things which make the activity of blasting ultrahazardous?
We have found nothing in the de cisional law which would support an affirmative answer to this
question. The decided cases. As well as common experience, indicate that the thing which makes
blasting ultrahazardous is the risk that property or persons may be damaged or injured by coming
into direct contact with flying debris, or by being directly affected by vibrations of the e arth or
concussions of the air. Where, as a result of blasting operations, a horse has be come frightened and
has trampled or otherwise injured a person, recovery of damages has been upheld on the theory of
negligence. [cc] Contra: Uvalde Construction Co. v. Hill, 142 Tex. 19, where a milkmaid was injured by
a frightened cow. But we have found no case where recovery of damages caused by a frightened farm
animal has been sustained on the ground of absolute liability.
If, however, the possibility that a violent vibration, concussion, or noise might frighten domestic
animals and lead to property damages or personal injuries be considered one of the harms which
makes the activity of blasting ultrahazardous, this would still not include the case we have here. *446
The relatively moderate vibration and noise which appellant’s blasting produced at a distance of two
and a quarter miles was no more than a usual incident of the ordinary life of the community. See 3
Restatement of Torts, 48, § 522, comment a. The trial court specifically found that the blasting did not
unreasonably interfere with the enjoyment of their property by nearby landowners, except in the case
of respondent’s mink ranch.
It is the e xceedingly nervous disposition of mink, rather than the normal risks inherent in blasting
operations, which therefore must, as a matter of sound policy, bear the responsibility for the loss
here sustaine d. We subscribe to the vie w expressed by Professor Harper (30 Mich.L.Rev. 1001, 1006,
supra) that the policy of the law doe s not impose the rule of strict liability to protect against harms
incident to the plaintiff’s extraordinary and unusual use of land. This is perhaps but an application
of the principle that the e xtent to which one man in the lawful conduct of his business is liable for
injuries to another involves an adjustment of conflicting interests. [c]
It may very well be that, under the facts of a particular case, recovery for damages of this kind may
be sustaine d upon some the ory other than that of absolute liability. In Hamilton v. King County, 195
Wash. 84, for example, recovery of such damages was sanctioned on the ground that defendant had
trespassed upon plaintiff’s land in doing the blasting which caused the disturbance.
Likewise, if the facts warrant, it is possible that such damages may be predicated upon a violation
of RCW 70.74.250, cf. Rem.1941 Sup., § 5440-25, requiring notice to be given at certain times of the
year when blasting is to be undertaken within fifteen hundred feet of any fur farm or commercial
hatchery, except in certain cases. In Maitland v. Twin City Aviation Corp., 254 Wis. 541, where a lowflying airplane frightened mink and loss of kittens resulted, recovery was allowed upon a showing that
the airplanes were flown at an unlawfully low elevation. *447 In Madsen v. East Jordan Irrigation Co.,
101 Utah 552, recovery was denied under facts very similar to those of the instant case, on the ground
that the mother mink’s intervention broke the chain of causation.
It is our conclusion that the

risk of causing harm of the kind here

e xperienced, as a result of
Introduction to Strict Liability | 43

the relatively minor vibration, concussion, and noise from distant blasting, is not the kind of risk
which makes the activity of blasting ultrahazardous. The doctrine of absolute liability is therefore
inapplicable under the facts of this case, and respondent is not entitled to recover damages.
The judgment is reversed.
Note 1. What is the holding in this case? Who loses?
Note 2. What does the court suggest (in dictum) about the possibility of recovery in future cases on
similar facts?
Note 3. Practice stating how this opinion serves—or disserves—tort law’s purposes. In so doing, take
note of whether your normative vie w of the case matches or diverges from your intuitions about the
facts. What do you notice about the relationship between framing the risks and harms in the fact
pattern and determining whether tort law’s larger purposes are served?

Check Your Understanding – Set 4

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=27#h5p-6

Expand On Your Understanding – Essay: Foster v. Preston Mill Co.

Essay: How would you explain your answer to the T/F question above, in 200 words or fewer?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=27#h5p-7

When you study proximate cause more de eply, under causation (in the full module on Negligence),
44 | Introduction to Strict Liability

you’ll see that there are interrelated issues of strategic framing involved: if you define an activity by
its harms, how you define its harms will dispose of the legal question. Consequently, it produces a
feedback loop in which parties will try to define the harm and the risk strategically. (Stay tuned—this
will make more sense when you encounter proximate cause. Note, for now that causation is always
required: if a plaintiff cannot show that the defendant’s actions—measured by whatever culpability
level—caused their injury, the plaintiff will fail. Proximate cause often is more important in negligence
law, partly because of the lower culpability standard imposed on defendants and negligence is the
area of law in which proximate cause is traditionally taught. But provding proximate cause is always
required, whether explicitly or implicitly.)

Check Your Understanding – Set 5

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=27#h5p-8

As you will learn when you study Product Liability Law, some claims may be bought under strict
liability. The Restatement (Third) limits “strict liability” for injuries caused by defective products based
on the kind of defects alleged. If claims are base d on manufacturing defect, strict liability applies; if the
claims are base d on design or warning defects, the Restatement articulates a different standard, more
akin to negligence. For now, keep in mind that understanding the differences between these regimes
will pay dividends later as your substantive knowledge deepens.

Introduction to Strict Liability | 45

4. Distinguishing Strict Liability from
Negligence (Socratic Script)
You’ve now completed an overview of negligence and strict liability. This next case is longer by design,
to give you practice with working through a dense opinion. The legal issues purposely overlap with
some you have just worked through in prior cases, in order to give you the opportunity to recognize,
build on and integrate the doctrines you are le arning. A “Socratic script” follows, posing questions that
allow you to simulate the kinds of questions a professor often asks in class. Somewhat similar to Foster
v. Preston Mills, Toms v. Calvary involves the question of whether a particular aspect of recreational
fireworks use triggers the imposition of strict liability. As you work through the case, keep the below
in mind.

Questions and Areas of Focus for the Readings
• Identify the key arguments by the parties and note how the court evaluates those arguments.
• Do you understand the significance of the court’s discussion of the standard of review?
• Observe how the court methodically applies the Restatement factors.
• How does the court deal with the jurisdictional split it identifies?

Toms v. Calvary Assembly of God, Inc. et al, Court of Appeals, Maryland
(2016)
(446 Md. 543)
In this case, we

address whether noise emanating from the

discharge

of a fireworks display

constitutes an abnormally dangerous activity, which would warrant the imposition of strict liability.
Petitioner, Andrew David Toms (“Toms”), operates a dairy farm in Frederick County, Maryland, and
maintains a herd of approximately 90 head of cattle. On September 9, 2012, a church-sponsored
fireworks display took place on property adjacent to Toms’ dairy operation. A permit to discharge
fireworks had been obtained, and the e vent was supervised by a deputy fire marshal. No misfires or
malfunctions took place. According to Toms, the fireworks display was so loud that it startled his
cattle, and caused a stampede inside his dairy barn. The stampe de resulted in the de ath of four dairy
cows, property damage, disposal costs, and lost milk revenue.
Toms filed suit against the

respondents, collectively, Calvary Assembly of God, Inc. (“Calvary”),

Zambelli Fireworks Manufacturing Co. (“Zambelli”), Zambelli employee Kristopher *546 Lindberg (“Mr.
Lindberg”), and Auburn Farms, Inc. [fn] in the District Court of Maryland sitting in Frederick County
46 | Distinguishing Strict Liability from Negligence (Socratic
Script)

(“District Court”). He alleged that the stampe de was the result of negligence, nuisance, and strict
liability for an abnormally dangerous activity. After a bench trial, the District Court entered judgment
in favor of the respondents. Toms appealed to the Circuit Court for Frederick County (“Circuit Court”).
The Circuit Court affirmed the lower court’s ruling. We granted Toms’ petition for writ of certiorari,
Andrew David Toms v. Calvary Assembly of God, Inc., 442 Md. 515 (2015). For the reasons explained
below, we hold that lawfully discharging fireworks is not an abnormally dangerous activity, and,
therefore, the imposition of strict liability is unwarranted. We affirm the judgment of the Circuit
Court.
FACTUAL AND PROCEDURAL BACKGROUND
Toms operates a dairy farm on 69 acres of leased property near Walkersville, Frederick County,
Maryland. The farm includes a barn and a herd of approximately ninety dairy cows. Auburn Farms,
Inc., at the time of the incident, possessed the adjacent 40 acre property. Calvary sought and obtained
permission from Auburn Farms, Inc. to use its property to host a fireworks display celebrating a
1

church youth crusade. Calvary then hired Zambelli, a professional fireworks company, to handle the
fireworks.
Pursuant to Md. Code (2003, 2011 Repl. Vol.), § 10–104(b) of the Public Safety Article, an application for
a permit to discharge fireworks was submitted to the Office of the State Fire Marshal. The application
identified the date, time, and location of the anticipated fireworks display, as well as the size and
number of fireworks shells that would be use d. It also *547 identified Mr. Lindberg as the Zambelli
employee who would be responsible for discharging the fireworks, and included his “State shooter
2

permit” information, and proof of Zambelli’s insurance for the e vent. Deputy Fire Marshal Glen Ruch
inspected Auburn Farms, Inc. and [***][t]he application was approved, including the [extended] 300
foot firing radius, and a permit to discharge fireworks was obtained by the respondents.
The e vent was open to the public, and advertised in radio interviews, a newspaper ad, and on a banner
located on Calvary’s property on Route 194. Toms recalls seeing the banner, but states he had no
notice of the e vent’s time or location. [***] The fireworks display took place at *548 8:30 p.m., and
Senior Deputy Fire Marshal Michael Guderjohn was onsite to supervise the e vent. Apparently, 250
shells were discharged over a fifteen-minute period without any misfires or duds. According to the
parties’ Agreed Statement of Facts submitted in their briefs to this Court, there is no dispute that
Toms’ barn was at least 300 feet away from the firing location. [fn]
At the time of the e vent, Toms’ cattle were inside the barn. Toms, however, arrived at the barn a
few minutes after Mr. Lindberg began discharging fireworks. Toms states that the e xplosions startled
his dairy cows, and caused them to stampede inside the barn. No witnesses, however, actually saw
the stampe de be cause no one was inside the barn with the cattle at the time the e vent started. The

1. Toms’ relatives and landlord were also contacted by Calvary, but all declined permission to allow Calvary to host the
event on their property.
2. Firework shooters must be certified in the State of Maryland. Applicants must submit a “Firework Shooter Testing and
Permit Application” to the Office of the State Fire Marshal in order to “to possess, sell or use explosives of any kind in
the State of Maryland.”
Distinguishing Strict Liability from Negligence (Socratic Script) | 47

stampede, Toms states, resulted in the de aths of three cows shortly thereafter, and injuries to a fourth
cow that ultimately led to its death, because it had to be “culled” from the herd a few weeks later.
[fn] In addition to the loss of four dairy cows, Toms sustained property damage to fences and gates,
disposal costs, and lost milk revenue. Toms sent a demand letter to Calvary outlining the damages, but
Calvary and Zambelli denied liability.
On December 9, 2013, Toms filed suit in District Court against the respondents seeking damages of
$13,148.20 under the theories of negligence, nuisance and strict liability for an abnormally dangerous
activity. On May 2, 2014, a one-day *549 bench trial took place in the District Court before Judge
W. Milnor Roberts. Several witnesses testified on Toms’ behalf, including his dairy veterinarian, Dr.
Richard Doak, and lay witnesses with experience handling cattle. At the time of the e vent, the lay
witnesses were located nearby the barn, and the y testified about the loudness of the fireworks display,
and hearing “banging” noises emanating from the barn at the time of the alleged stampede. Dr. Doak
testified, among other things, about the tendency of loud unexpected noises to trigger a “startle
response” in cows, which can lead to a stampede as well as injuries if a herd is confined to a small
space. [***]
The

District Court e
ntered judgment in favor of the

respondents. It found that although Toms

sustained damage, Toms did not establish any basis for liability for the injuries to his property,
including livestock. The District Court determined that the fireworks display was a single e vent with
no evidence that injuries or damages were sustaine d by direct contact with the discharged shells. No
evidence established negligence on behalf of the respondents, because the y had lawfully complied
with statutory requirements by obtaining a permit, and the conditions of the permit were not violated.
As to the issue of strict liability, the District Court found that the discharge of fireworks could be
an abnormally dangerous activity, but that the danger is contained within the area allowed by the
permit: here, a 300 foot firing radius. The District Court, however, *550 did not find that noise from
a fireworks discharge itself was abnormally dangerous. Furthermore, it reasoned, strict liability for an
abnormally dangerous activity could not be impose d, because Toms’ barn was not located within 300
feet of the firing location.
[***] [T]he Circuit court affirmed the District Court’s judgment. Although it held that the use of
fireworks was abnormally dangerous as to the damage from explosions, the Circuit Court stated that
the respondents “are not strictly liable be cause the type of harm—damage caused by noise—is not of
a type that makes the activity abnormally dangerous.” Under the theory of negligence, it found no
evidence to show that the respondents breached any duty of care. There was substantial evidence to
show that the respondents “acted reasonably and with due care in preparing [and discharging] the
fireworks display.” Lastly, the Circuit Court held that the the ory of private nuisance was inapplicable,
because, as a one-time event, “the fireworks were not substantial and unreasonable and did not rise
to the level of significant harm needed to create a private nuisance.” [fn]
We granted certiorari … to answer the following question:
Does the doctrine of strict liability for an abnormally dangerous activity apply to the noise of a
fireworks discharge, based on the facts of this case?

48 | Distinguishing Strict Liability from Negligence (Socratic Script)

*551 For the

reasons stated below, we

shall answer in the negative. Accordingly, we

affirm the

judgment of the Circuit Court, and agree that there is no liability for abnormally dangerous activities,
but for reasons different than those articulated by the Circuit Court.
STANDARD OF REVIEW
The question before

this Court is whether discharging fireworks—specifically, the

noise

it

produces—is abnormally dangerous, and thus, subject to strict liability. Whether an activity
constitutes an abnormally dangerous activity is a question of law. RESTATEMENT (SECOND) OF
TORTS § 520 cmt. l (AM. LAW INST. 1977) (stating that the function of the court is to decide whe ther
an activity is abnormally dangerous by considering several factors and “the weight given to each that
it merits upon the facts in evidence”). “As with all questions of law, we review this matter de novo.” [c]
Gallagher v. H.V. Pierhomes, LLC, 182 Md.App. 94, 109 (2008).
For questions of fact for an action tried without a jury, we apply a clearly erroneous standard. Md. Rule
8–131(c) states:
When an action has been tried without a jury, the appellate court will review the case on both
the law and the e vidence. It will not set aside the judgme nt of the trial court on the e vidence
unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge
the credibility of the witnesses.
“On appellate review, the Court of Appeals may set aside the judgme nt of the lower court based on the
factual findings of the lower court only when those findings are cle arly erroneous.” Helinski v. Harford
Mem’l Hosp., Inc., 376 Md. 606, 614, 831 A.2d 40, 45 (2003) (citing Md. Rule 8–131(c)).
DISCUSSION
Maryland has long recognized the doctrine of strict liability, which does not require a finding of fault
in order to *552 impose liability on a party. See Yommer v. McKenzie, 255 Md. 220, 222 (1969); Toy v. Atl.
Gulf & Pac. Co., 176 Md. 197 (1939). The doctrine is derived from the famous 1868 English case of Rylands
v. Fletcher, which recognized that, under certain circumstances, no-fault liability could be impose d.

3

[***] The modern formulation of the strict liability doctrine is found in the Restatement (Second)
of Torts §§ 519–520 (1977). This Court adopted that formulation in Yommer, while the Restatement
(Second) of Torts was still in its tentative draft. 255 Md. at 223–24, 257 A.2d at 139. [***]
Restatement (Second) of Torts § 519 defines strict liability for an abnormally dangerous activity:
One who carries on an abnormally dangerous activity is subject to liability for harm to the
person, land or chattels of another resulting from the activity, although he has e xercised the

3. “Dean Thayer pointed out the error in the popular assumption that the rule of Rylands v. Fletcher makes the defendant
liable for all consequences in fact resulting from his conduct. This is precisely what the rule of the case does not do; it
makes [the] defendant liable ... only for proximate consequences, not for remote consequences.” Fowler V. Harper,
Liability Without Fault and Proximate Cause, 30 MICH. L.REV. 1001, 1005 (1932) (emphasis in original).
Distinguishing Strict Liability from Negligence (Socratic Script) | 49

utmost care to prevent the harm…. This strict liability is limited to the kind of harm, the
possibility of which makes the activity abnormally dangerous.
To determine whether an activity is abnormally dangerous, a court uses six factors. *553 These factors
are:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.
RESTATEMENT (SECOND) OF TORTS § 520 (AM. LAW INST. 1977). [***] As the Restatement (Second)
of Torts reminds us:
Because of the interplay of these various factors, it is not possible to reduce abnormally
dangerous activities to any definition. The essential question is whether the risk created is so
unusual, either because of its magnitude or be cause of the circumstances surrounding it, as
to justify the imposition of strict liability for the harm that results from it, even though it is
carried on with all reasonable care.
RESTATEMENT (SECOND) OF TORTS § 520 cmt. f (AM. LAW INST. 1977). The Reporter’s Note for this
section identifies typical abnormally dangerous activities, such as the storage of large quantities of
water or explosives in dangerous locations, and conducting blasting operations in the middle of a city.
In Maryland, we weigh each factor independently. More emphasis is placed on the fifth factor: the
appropriateness of the activity in relation to its location. Yommer, 255 Md. at 226. “The thrust of the
doctrine is that the activity be abnormally dangerous in relation to the area where it occurs.” [***] In
Yommer, the owners of a gasoline station were held strictly liable for damages resulting from gasoline
contamination of the well water of an adjacent residential property. 255 Md. at 227. There, we applie d
the Restatement factors, and found the fifth factor to be the most persuasive factor:
No one would deny that gasoline stations as a rule do not present any particular danger to the
community. However, when the operation of such activity involves the placing of a large tank
adjacent to a well from which a family must draw its water for drinking, bathing and laundry, at
least that aspect of the activity is inappropriate to the locale, even when equated to the value
of the activity. Yommer, 255 Md. at 225.
“We accept the test of appropriateness as the proper one: that the unusual, the e xcessive, the
extravagant, the bizarre are likely to be non-natural uses which lead to strict liability.” Yommer,
255 Md. at 226.
In applying the six factors, it is not necessary to have all six factors weigh in favor of a particular party.
“Any one of them is not necessarily sufficient of itself in a particular case, and ordinarily several of
them will be required for strict liability. On the other hand, it is not necessary that each of them be
50 | Distinguishing Strict Liability from Negligence (Socratic Script)

present, especially if others weigh heavily.” RESTATEMENT (SECOND) OF TORTS § 520 cmt. f (AM.
LAW INST. 1977).
Though the doctrine of strict liability has evolved since the rule in Rylands was first announced, [fn]
the policy concerns in *555 favor of limiting its application remain. Previously, when this Court was
still applying the rule in Rylands, this Court noted that without strict limitations, “the rule would
impose grie vous burdens as incident to the ownership of land….” Toy, 176 Md. at 213. In Rosenblatt, we
discussed the nature of the limitations on the doctrine:
We have taken care to limit the application of this doctrine be cause of the he avy burden it
places upon a user of land. Our cases have limited the class of abnormally dangerous activities
to those activities which would be abnormally dangerous in relation to the area where the y
occur. Moreover, we have limited the doctrine with regard to the class of actors to which
it applies: we have required that the one e ngaging in the relevant activity have ownership
or control over the land…. And, finally, we have required that the act have a relation to the
occupation or ownership of land. 335 Md. at 73–74 (internal citations omitted).
In Kelley, we refused to apply the doctrine in a case involving a minor’s death caused by the firing
of a handgun. 304 Md. at 133. “The dangers inherent in the use of a handgun in the commission of a
crime … be ar no relation to any occupation or ownership of land. Therefore, the abnormally dangerous
activity doctrine does not apply to the manufacture or marketing of handguns.” Id. [***]
In Gallagher v. H.V. Pierhomes, LLC, the Court of Special Appeals held that pile driving was not an
abnormally dangerous activity. 182 Md.App. 94, 113 (2008). There, pile driving operations at the Inner
Harbor in Baltimore City caused minor damage in a 200 year old residence located 325 feet away from
the construction site. Gallagher, 182 Md.App. at 110. The intermediate appellate court found that the
defendants had acted appropriately in obtaining the proper permits, conducting geotechnical studies,
and carefully monitoring the vibrations produced by the pile driving ope rations. “[T]here was only
a single recorded vibration that exceeded the limits.” Gallagher, 182 Md.App. at 99–100. The court
concluded that the risk of harm produced by pile driving operations “is not a high degree of risk which
requires the application of strict liability” because that risk can be eliminated “through the e xercise of
ordinary care.” Gallagher, 182 Md.App. at 110.
Jurisdictional Split on Strict Liability and Fireworks
Whether fireworks discharge

constitutes an abnormally dangerous activity is a case

of first

impression in Maryland, because fireworks liability normally arises in the context of nuisance and
negligence

4

litigation. Some

jurisdictions, however, *557 have

addressed the

issue

of whether

fireworks are abnormally dangerous. As evidenced by the cases below, litigation often came to fruition

4. Under certain circumstances, causes of action may exist in cases involving fireworks liability under the theories of
negligence or nuisance. See Crowley v. Rochester Fireworks Co., 183 N.Y. 353 (1906) (“[T]here may be negligence in the
character of the fireworks used on a particular occasion as well as in the method of their discharge.”); Little v. Union
Trust Co. of Maryland, 45 Md.App. 178, 183 (1980) (discussing possible nuisance liability for shooting fireworks in the
street).
Distinguishing Strict Liability from Negligence (Socratic Script) | 51

due to a malfunction or misfire at a fireworks display, which resulted in spectator injuries. Although
fireworks liability cases often share

similar facts, jurisdictions disagree

on whe ther discharging

fireworks is an abnormally dangerous activity, as evident by the split of legal authority on the matter.
The highest appellate court in Washington, for instance, held pyrotechnicians strictly liable when
a shell exploded improperly and injured spectators at a public fireworks show. Klein v. Pyrodyne
Corp., 117 Wash.2d 1, amended by 117 Wash.2d 1 (1991). It stated that Restatement factors (a) through
(d) weighed in favor of imposing strict liability, because discharging fireworks creates a “high risk
of serious bodily injury or property damage” due to the possibility of a malfunction or similar issue.
Klein, 810 P.2d at 922. “The dangerousness … is evidenced by the elaborate sche me of administrative
regulations with which pyrotechnicians must comply[,]” including licensing and insurance
requirements. Id. at 920. Under factor (d), it further determined that discharging fireworks was not
a matter of common usage, because the licensing scheme restricts the general public from engaging
in that activity. Id. at 921. In addition to the high risk discharging fireworks creates, that court
determined that public policy and fairness warranted strict liability. Id. at 922. Otherwise, the injured
spectators would have be en subject to the “problem of proof” because “all evidence was destroyed as
to what caused the misfire of the shell that injured the Kleins.”
Arizona’s intermediate appellate court was persuaded by the rationale in Klein in a case involving a
misfire at a mall-sponsored fireworks display. Miller v. Westcor Ltd. P’ship, 171 Ariz. 387 (Ct.App.1991).
Although the issue was in the context of negligence liability under § 427 of the Restatement (Second)
of Torts, like Klein, it found that the risk of malfunction or misfire could not be entirely eliminated,
and that the “legislature has also recognized the dangerousness *558 of fireworks by regulating their
use” as reflected in a “statutory requirement that a pyrotechnician obtain a surety bond or certificate
of insurance

for at least $1,000,000 in order to obtain a license to conduct a public fireworks

display.” Miller, 831 P.2d at 391–92. Therefore, it held that public fireworks displays were an inherently
dangerous activity.
Other jurisdictions, however, have come to the opposite conclusion, and have held that the le vel
of risk involved with a fireworks discharge does not warrant strict liability. In Haddon v. Lotito,
Pennsylvania’s highest appellate court applied the ultrahazardous activity test, and determined that
strict liability—referred to as absolute liability—did not apply in a case involving spectator injuries at
a public fireworks display. 399 Pa. 521 (1960). Critically, that court distinguished lawful from unlawful
fireworks displays:
[A] public fireworks display, handled by a competent operator in a reasonably safe area and
properly supervised (and there is no proof to the contrary herein), is not so dangerous an
activity…. Where one discharges fireworks illegally or in such a manner as to amount to
a nuisance and causes injury to another, some jurisdictions have held that liability follows
without more. But the production of a public fireworks display, under the circumstances
presented herein, is neither illegal nor a nuisance and, consequently, liability, if existing, must
be predicated upon proof of negligence. Id. (internal citations omitted).
Other courts have rule d similarly. In Litzmann v. Humboldt Cty., California’s intermediate appellate
court determined that “the handling and discharge of fireworks … were not such as to come within
52 | Distinguishing Strict Liability from Negligence (Socratic Script)

the definition of ultrahazardous activities.” 273 P.2d 82, 88 (Cal.Dist.Ct.App.1954). In that case, an
undischarged firework was negligently discarded on fairgrounds, and a minor was severely injured
when he found and ignited it. After applying the Restatement factors, that court declined to impose
strict liability, because “[i]t was the failure of care that caused the injuries and not the nature of the
risks involved.” Litzmann, 273 P.2d at 88.
*559 [T]hese risks could be eliminated by a degree of care far within the bounds of ‘utmost care’….
[B]y the me thod of firing adopted[,] it was a reasonably easy matter to direct the firing so that injury
would not arise through misdirection of the missiles; and that observation by those skille d enough to
be licensed to explode fireworks was adequate to de tect the lack of explosion of the material shot into
the air. It appears, therefore, that the activities engaged in and charged to be ultrahazardous were in
fact risks which could be and would be eliminated if commensurate care had been exercised. Id.
In Cadena v. Chicago Fireworks Mfg. Co., the Illinois intermediate appellate court stated that only
Restatement factors (a), which focuses on the existence of a high degree of risk of some harm, and
(b), which concerns the likelihood that the harm that results will be great, weighed in favor of strict
liability. 297 Ill.App.3d 945 (1998) overruled on other grounds by Ries v. City of Chicago, 242 Ill.2d 205
(2011). Notably, that court reminded readers that factor (c) “does not require the reduction of all risk”
and that “the e xercise of reasonable care in displaying fireworks will significantly reduce the risks
involved [in a fireworks display].” Cadena, 232 Ill.Dec. 60, 697 N.E.2d at 814 (emphasis in original).
Unlike other courts, it interpreted factor (d) broadly and found that “fireworks displays are a matter
of common usage” because “many individuals view them and many municipalities display fireworks….”
Id. (emphasis in original).
Fireworks Liability in Maryland
In the instant case, Toms asks this Court to expand the strict liability doctrine and hold that noise
5

emanating from a fireworks discharge is abnormally dangerous to livestock. *560 [***]
Toms argues that the facts of the case are sufficient to show that each [of the Restatement factors]
weighs in favor of imposing strict liability. He maintains that the resulting sudden loud explosions,
for example, involve a high risk of harm that can trigger a startle reflex in dairy cows, which are
known to be large, clumsy animals. That startle reflex may cause, as Toms alleges happened here,
the cows to stampede and cause injuries to themselves as well as to property. Under factor (c), Toms
posits that there is no way to eliminate this risk other than by choosing an alternative location to
host the fireworks display. He also argues that the risk can be mitigated with advanced notice to
the owner of the dairy cows of the fireworks display. For instance, Toms states that he was never
given specific or general notice aside from a banner on Calvary’s property advertising the e vent. With
advanced notice, Toms contends he could have mitigated the risks by moving the cows from the barn
to an outdoor enclosure. Toms further argues that factor (d) weighs in his favor, because although
“fireworks displays at public parks, ballparks, and the like, are common, exploding fireworks adjacent

5. In the petition for writ of certiorari, Toms states “This Court ... can expand the factual application of this tort to
instances where the sudden, abnormal noise of a fireworks display, adjacent to livestock, can create strict liability.”
Distinguishing Strict Liability from Negligence (Socratic Script) | 53

to an active dairy farm is not.” Additionally, under factor (e), discharging fireworks 300 to 500 *561
feet from a herd of cattle, in Toms’ view, “is a disaster waiting to happen” and therefore, is not an
appropriate location.
For support, Toms cites to Toy v. Atl. Gulf & Pac. Co., and its discussion of liability without fault when
an “occupier was not using the land in the common and natural way, and had artificially produced the
potential danger….” 176 Md. 197, 213 (1939). Toms states that the property of Auburn Farms, Inc. was not
being used in the “common and natural way” because it was hosting a one-time event. Toms further
argues that under factor (f), a local church activity provides little benefit to the community, and does
not outweigh the risks associated with the fireworks display to the adjacent dairy farm operation.
Lastly, in addition to the

Restatement factors, Toms highlights important policy considerations.

“Because of population growth in Maryland, the interaction [between] farmers and development is a
continuing issue…. Expanding Maryland case law to provide protection for farmers against damages
from such abnormal intrusion would meet a social need.” Toms argues that he sustaine d a preventable
injury, and if the court does not impose strict liability, it shall remain an injury without remedy.
The respondents contend that the lower courts were correct in determining that, based on the facts
of this case, strict liability is inapplicable, because e vidence is insufficient to support Toms’ claim that
the noise produced by the fireworks discharge is abnormally dangerous to livestock. As support, the
respondents cite to Md. Code (2003, 2011 Repl. Vol.), §§ 10–101 et seq. of the Public Safety Article as
evidence that the General Assembly “has already regulated the use of fireworks, and it does not afford
protection to the chattel for noise.”
Furthermore, they posit, the Restatement factors do not support expanding the doctrine of strict
liability for abnormally dangerous activities. In their view, all the
respondents. Under factor (a), there

is not a high degree

factors weigh in favor of the

of risk associated with the

discharge

of fireworks, because the use of fireworks is heavily regulated: a deputy fire marshal inspe cted
and authorized the firing location, and testified that the respondents lawfully complied with the
permitting *562 process; the respondents obtained a permit for the e vent; Mr. Lindberg voluntarily
extended the firing radius an additional 50 feet beyond the State’s requirement; a senior deputy fire
marshal supervised the e vent, and testified that the shells were properly discharged with no misfires
or duds. Furthermore, the respondents contend that Toms did not provide e vidence that the risk of
cows stampeding due to sudde n loud noise is commonly known. Under factor (b), the most common
risks associated with a fireworks display—mishandling, misfires, and malfunctions—did not occur in
the instant case. There is no e vidence of the foreseeability of a herd of dairy cows suffering great harm
from a fireworks display. In the past, similar fireworks displays have taken place in close proximity
to Toms’ dairy farm operation without apparent incident. Factor (c) is resolved in the respondents’
favor, they suggest, because Toms was aware of the e vent. Lastly, the respondents state that factors
(d) through (f) do not weigh in favor of strict liability, because fireworks displays are a frequent event
in the city of Walkersville, the event was open to the public, and applicable laws were not violated. No
noise ordinances were violated and advanced notice to Toms was not required.
In applying the cle arly erroneous standard as it applies to questions of fact, we are satisfied with
the e videntiary findings made by the District Court. There was sufficient evidence in the record to
support those findings. Therefore, we ne ed only review de novo the question of law for the issue of
54 | Distinguishing Strict Liability from Negligence (Socratic Script)

whether strict liability for an abnormally dangerous activity should be impose d on a lawful fireworks
display.
Maryland defines fireworks as “combustible, implosive

or e xplosive

compositions, substances,

combinations of substances, or articles that are prepared to produce a visible or audible effect by
combustion, explosion, implosion, deflagration, or detonation.” Md. Code (2003, 2011 Repl. Vol.), §
10–101(f) of the Public Safety Article. We disagree with Toms that our analysis should be so narrow
as to focus solely on the audible component—the noise produced—by a fireworks display. In the
petition for writ of certiorari, Toms refers to the *563 “noise of a fireworks discharge,” but the noise
itself is a by-product of the activity of discharging fireworks. By definition, under § 10–101(f) of the
Public Safety Article, fireworks “are prepared to produce a visible or audible effect….” Therefore, when
applying the multi-factor test from § 520 of the Restatement (Second) of Torts, we will consider all
the characteristics and the nature of the risks associated with discharging fireworks. After all, we are
also mindful that “[o]ne who carries on an abnormally dangerous activity is not under strict liability
for every possible harm that may result from carrying it on.” RESTATEMENT (SECOND) OF TORTS §
519 cmt. e (AM. LAW INST. 1977). We apply the Restatement factors to the instant case:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others. Special
events requiring the use of large, professional “display fireworks” are he avily regulated in Maryland
pursuant to §§ 10–101 et seq. of the Public Safety Article. [***] We hold that a lawful fireworks display
does not pose a high degree of risk, because the statutory scheme in place is designed to significantly
reduce the risks associated with fireworks, namely mishandling, misfires, and malfunctions. [***]
Critically, in enacting the Public Safety Article, the General Assembly did not regulate the audible
effects of display fireworks, which indicates that any risk associated with the de cibel level of a
fireworks discharge is minimal or non-existent.
Lawful fireworks displays do not pose

a significant risk because

“[a] person who possesses or

discharges fireworks in violation” of the permitting process “is guilty of a misdemeanor and on
conviction is subject to a fine not e xceeding $250 for each offense.” Md.Code (2003, 2011 Repl.Vol.),
§ 10–111(a) of the Public Safety Article. To impose a relatively light penalty for an unlawful fireworks
display is telling. If an unlawful fireworks display is only a misdemeanor offense with no possibility of
incarceration, why then should strict liability be impose d for risks associated with a lawful fireworks
display?
(b) likelihood that the harm that results from it will be great. This factor also weighs in favor of not
imposing strict liability, because the purpose of a 300 foot perimeter surrounding the firing location
is to mitigate the likelihood of harm. The instructions sheet attached to the “Application for Public
Fireworks Display” states, in pertinent part:
If other properties are in the fall out zone of the fireworks, a letter must be attached from
the

property

owner

or representative

of

the

property

owner

stating

that

they

give *565 permission for their property to be use d in the fall out zone. If any structures are
within the fall out zone, the owner of the structure must provide documentation that the
structure will not be occupied during the fireworks display. All structures within the fall out
zone shall be deemed as being unimportant.
Distinguishing Strict Liability from Negligence (Socratic Script) | 55

The statutory scheme regulating the use of fireworks is specifically designed to reduce risk. “The harm
threatened must be major in degree, and sufficiently serious in its possible consequences to justify
holding the defendant strictly responsible for subjecting others to an unusual risk. It is not enough
that there is a recognizable risk of some relatively slight harm….” RESTATEMENT (SECOND) OF TORTS
§ 520 cmt. g (AM. LAW INST. 1977). [***] Because Toms’ dairy barn, and therefore his cows, were not
located within the fall out zone, the likelihood of harm to the public and property was significantly
reduced. The 300 foot firing radius was effective be cause no shells fired that night malfunctioned, and
no debris littered Toms’ property.
(c) inability to eliminate the risk by the exercise of reasonable care. We are reminded that:
It is not necessary, for the factor stated in Clause (c) to apply, that the risk be one that no
conceivable precautions or care could eliminate. What is referred to here is the unavoidable
risk remaining in the activity, even though the actor has taken all reasonable precautions in
advance and has exercised all reasonable care in his operation, so that he is not negligent.
RESTATEMENT (SECOND) OF TORTS § 520 cmt. h (AM. LAW INST. 1977). We disagree with Toms
that reasonable care cannot reduce the risk of harm to livestock to acceptable levels. In enacting §§
10–101 et seq. of the Public Safety Article, the General Assembly took care to implement sufficient
precautions *566 so as to ensure that lawful fireworks displays can be a safe and enjoyable activity.
[***] Health and safety, therefore, are of paramount concern, and we are satisfied that the regulations
sufficiently protect the public and property. Only qualified professional fireworks companies and
their agents—authorized shooters—may apply for a permit. The requirements of mandatory insurance
coverage, a physical site inspe ction, and event supervision is evidence of reasonable care that reduces
the risk of harm. The site inspe ction and prior approval of an authority having jurisdiction ensures
that the firing location is appropriate and that injury is unlikely. Importantly, additional measures are
required if other properties are located within the fall out zone, including notice and permission from
that property owner for their property to be use d in the fall out zone. The 300 foot firing radius is
sufficient. Furthermore, notice to Toms was not necessary, because his dairy barn was located beyond
the firing radius. In our view, the Restatement does not require the e limination of all risk, and because
the risks inherent with a fireworks discharge can be reduced to acceptable levels, this factor does not
support a conclusion of an abnormally dangerous activity.
(d) extent to which the activity is not a matter of common usage. “An activity is a matter of
common usage if it is customarily carried on by the great mass of mankind, or by many people in
the community.” Yommer, 255 Md. at 225 n. 2 (citation omitted). We recognize that the discharging of
lawful fireworks displays is a matter of common usage.
In a letter dated July 3, 1776, John Adams wrote about the pomp and circumstance that should
surround the *567 celebration of our Nation’s independence:
“I am apt to believe that it will be celebrated, by succeeding Generations…. It ought to be

56 | Distinguishing Strict Liability from Negligence (Socratic Script)

solemnized with … Bonfires and Illuminations from one End of this Continent to the other
6

from this Time forward forever more.”

As stated in § 10–101 of the Public Safety Article, fireworks are designed “to produce a visible or audible
effect” for the benefit of spectators. Therefore, we define “common usage,” as it pertains to this case,
broadly to include not only the professionals who discharge fireworks, but also the spe ctators who
partake in the fireworks display. Almost by definition, lawful fireworks displays involve two parties:
the shoote r and the audience. We conclude that lawful fireworks displays are a matter of common
usage. [fn] See also Cadena, 232 Ill.Dec. 60 (determining that the “social utility” of fireworks displays to
communities “is not outweighed by its dangerous attributes.”).
(e) inappropriateness of the activity to the place where it is carried on. When this Court adopted the
Restatement (Second) of Torts’ multi-factor test for abnormally dangerous activities, this particular
factor was identified as being the most crucial. Yommer, 255 Md. at 225. “The thrust of the doctrine
is that the activity be abnormally dangerous in relation to the area where it occurs.” Kelley, 304 Md.
at 133. Implicit in the granting of a permit to discharge fireworks, is the lawfulness of that proposed
*568 fireworks display. See § 10–103(a) of the Public Safety Article (“[T]he State Fire Marshal may issue
a permit to authorize the discharge of fireworks in a place where the discharge of fireworks is legal.”).
[***] Additionally, Senior Deputy Fire Marshal Guderjohn testified that previous fireworks displays
had taken place within a mile of Toms’ dairy barn. Notably, Frederick County does not have a noise
ordinance regulating the de cibel level of fireworks. If Frederick County enacted regulations further
restricting the use of fireworks, the respondents would be obliged to comply with those regulations
in addition to applicable State laws. After all, pursuant to § 10–103(c)(1) of the Public Safety Article, a
permit to discharge fireworks “does not authorize the holde r of the permit to possess or discharge
fireworks in violation of an ordinance or regulation of the political subdivision where the fireworks
are to be discharged….” In sum, we do agree that a lawful fireworks display does not fall within the
context of “the unusual, the e xcessive, the extravagant, the bizarre …. non-natural uses which lead to
strict liability.” Yommer, 255 Md. at 226,.
(f) extent to which its value to the community is outweighed by its dangerous attributes. Here,
a church-sponsored fireworks display celebrated a youth crusade, and the event was open to the
public. As a symbol of celebration, fireworks play an important role in our socie ty, and are often
met with much fanfare. The statutory scheme regulating its use minimizes the risk of accidents,
thus, reinforcing the popularity of these displays. This Court recognizes that not all segments of
the population may enjoy fireworks displays, especially those with noise sensitivities, however, we
conclude *569 that the social desirability of fireworks appears to outweigh their dangerous attributes.
Policy considerations. We are mindful that the doctrine of strict liability for abnormally dangerous
activities is narrowly applied in order to avoid imposing “grievous burdens” on landowners and
occupiers of land. Toy, 176 Md. at 213. Toms argues that we should e xpand the factual application of
this doctrine, however, the Restatement factors do not support such a position. The use of fireworks,

6. Letter from John Adams to Abigail Adams, 3 July 1776, MASS. HIST. SOC'Y, www.masshist.org/digitaladams/archive/
doc?id=L17760703 jasecond [https://perma.cc/P22L-DMRX].
Distinguishing Strict Liability from Negligence (Socratic Script) | 57

especially in public fireworks displays, is heavily regulated pursuant to §§ 10–101 et seq. of the Public
Safety Article. Under § 10–103, a permit to discharge fireworks cannot be obtaine d unless the State
Fire

Marshal de termines that proposed fireworks display will “not endanger health or safety or

damage property….” In light of this policy, the respondents cannot be held strictly liable, because the y
lawfully complied with the conditions of the permit as well as applicable laws. We are persuaded by
the rationale in Haddon: “a public fireworks display, handled by a competent operator in a reasonably
safe area and properly supervised (and there is no proof to the contrary herein), is not so dangerous
an activity.” 161 A.2d at 162.
At issue in this case is a lawful fireworks display that was implemented pursuant to the requirements
of the Public Safety Article. At trial, Toms did not present any evidence concerning what noise le vels
should be appropriate for public fireworks display. Sufficient evidence was not presented to the trier
of fact that a lawful fireworks display was abnormally dangerous to livestock. Thus, as a matter of law
and on a case-by-case basis, we do not e xtend the doctrine of strict liability for abnormally dangerous
activities under the circumstances.
CONCLUSION
Accordingly, we

affirm the judgment of the

Circuit Court. Lawful fireworks displays are

not an

abnormally dangerous activity, because the statutory scheme regulating the use of *570 fireworks
significantly reduces the risk of harm associated with the discharge of fireworks. Furthermore, it is
not the province of the Judiciary, but rather, the Legislature to de termine zoning classifications and
enact noise ordinances that would further regulate the use of fireworks.
PETITIONER TO PAY THE COSTS.
Note 1. What is the law descriptively regarding fireworks in Arizona, Pennsylvania and Washington?
Normatively, do you think the court reaches the correct conclusion with respect to Maryland? Why
or why not?
Note 2. Tort law is often local; rulings may reflect a jurisdiction’s values and priorities. Consider the
role the se tting played in Garcia v. Halsett and Foster v. Preston Mill Co. What’s at stake in the fight
over whether the noise produced by fireworks will be subject to strict liability in Maryland?
Note 3. Why might the District Court have focused on the lack of “direct contact with the discharged
shells”?

Expand On Your Understanding – Socratic Script: Toms v. Calvary

Question 1. What is the legal question in Toms v. Calvary, and what is the holding? (This is intended to be
a straightforward question.)

58 | Distinguishing Strict Liability from Negligence (Socratic Script)

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=29#h5p-9

Question 2. What is the significance, for a trial court, of the question of whether the determination of
“abnormally dangerous activities” is a question of law or fact? How does the answer to this question
differ for an appellate court?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=29#h5p-10

Question 3. The Restatement (Second) of Torts, Sec. 520, lists six factors to determine whether an
activity is abnormally dangerous. The third factor, (c), considers inability to eliminate the risk through
the exercise of reasonable care. Why do you think this inquiry exists as part of the strict liability
determination?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=29#h5p-11

Question 4. To bring the fact pattern of Toms into the realm of a successful negligence action, what sorts
of facts would you want to see? Give an example of one or two changes to the fact pattern that would
make a negligence action plausible.

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=29#h5p-12

Check Your Understanding – Set 6

Distinguishing Strict Liability from Negligence (Socratic Script) | 59

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=29#h5p-13

This next question involves policy-oriented analysis and you may not have done very much of this yet
in law school. Do your best to work through it and know that you will gain high competency in this
style of analysis by the end of the term, even if it’s a little unfamiliar to you at the moment.

Expand On Your Understanding – Essay: Toms v. Calvary

Essay: Do you think this case is rightly or wrongly decided? Why? Your answer should include
descriptive analysis (address the law as you understand it to be so far, what the law is) as well as
prescriptive or normative analysis (what you think the law should be, based on a policy rationale).
(Recommended maximum, 200 words)
Distinguish your intuitive response (if you feel the outcome seems unfair, or you hate fireworks… or you
loathe cows) from your descriptive reading of the case law (cases assigned in the readings and cases
cited in Toms).
As a policy matter, what do you think the court should do normatively, that is, based on policy reasons?
You can raise any kind of policy argument that makes sense to you here, for example:
a) an institutional competence argument about the court versus the legislature deciding this issue;
b) an argument based in doctrine, on the likely impact of expanding strict liability on these facts, or
choosing not to do so;
c) an argument rooted in socioeconomic and cultural values (weighing the competing priorities of fans
of fireworks; churchgoers; and farmers or other property owners, for instance)
d) an economic or utilitarian argument oriented towards efficiency
e) an argument from policy in some other form

60 | Distinguishing Strict Liability from Negligence (Socratic Script)

5. Introduction to the Intentional Torts:
Protecting Property, Body, and Mind
Part I. Protecting Property and Bodily Integrity
Thus far, the standards of tort liability you’ve le arned about have hinged on fault or policy fiat based on
determinations of levels of risk. With these materials, we shift gears and introduce different inquiries
into the conduct of the defendant, as well as the intentionality behind that conduct. Tort law defines
intent in a particular way along a spectrum of volition. A person who intends to act in a given way
satisfies the intent requirement for many of the intentional torts regardless of whether they intended
the harm that their action caused. It’s somewhat like mens rea in criminal law, with which you may be
familiar, in that it’s a required mental state that must be proven for any claim in this domain. To make
out a claim for an intentional tort, the plaintiff must prove the ne cessary intent level required for that
claim.
In addition, while there is overlap in the kinds of interests that negligence and strict liability protect,
the intentional torts protect additional interests that are critically important to the system of tort law.
Framing the interests accurately becomes much more important in the intentional torts, which tend
to require satisfaction of rigid criteria for a claim to succeed, but which tend to protect interests more
broadly than negligence or strict liability do. For instance, the tort of battery does not protect merely
against physical harm, the way negligence and strict liability do. This tort protects bodily autonomy,
which means that a plaintiff can sue for the invasion of that autonomy even if they’ve suffered no
physical harm.
Similarly, the tort of trespass to land protects against something more than just harm to land; it
protects against one’s ownership in the land and right to use it. A plaintiff can sue for trespass even if
nothing happens to harm their land, merely because property ownership allows owners to stop people
from coming onto their land without permission. The interest tort law is protecting runs deep and
reflects normative judgment about what society values and believes.
For that reason, tort law’s protection of one’s bodily autonomy and one’s home or property may
make intuitive sense. Yet tort law is somewhat idiosyncratic about what it chooses to protect. It has
historically been less protection of violations connected with feelings or one’s mental state. For most
of the history of American tort law, plaintiffs couldn’t recover for emotional distress alone. Courts
feared fraud and expressed concern over their inability to measure genuine harm or suffering with
nothing more than a plaintiff’s allegations of distress. As modern psychology made such assessments
more reliable and standardized, courts were none theless somewhat slow to relax the limitations on
recovery for emotional distress.
Scholars have note d the ways in which this sometimes reflected gendered and racist ideas, and tort
law continues to need to understand and account for its internal coherence and e quity. For one thing,
Introduction to the Intentional Torts: Protecting Property,
Body, and Mind | 61

when claims for “fright” or emotional distress succeeded, historically they were usually brought by
men on behalf of women (such as a husband or father); for another, they were usually attributable to
some other doctrinal justification. One of the cases in this unit, Gulf v. Luther, permits recovery by a
white woman for allegedly suffering emotional distress and fright while waiting in a train station when
a Black woman employed by the railway company spoketo her in a way deemed to be insulting. There
are doctrines you’ll see in the case, however, that provide additional reasons for why the court might
have permitted recovery despite the general rules limiting recovery for purely emotional distress.
Racism and sexist tropes also play a role in the way the legal opinion proceeds and in how it construes
the precedents on which it relies.
To understand tort law, it is important to observe the rhetoric used, the way that the court deals
with the e vidence in the case, and its unacceptable and dehumanizing treatment of the Black woman
whose action is the source of the grie vance. Following that, we’ll look at a case cited in Luther which
demonstrates how case law entrenches racism and creates silences, systematic gaps in the record
that minimize or erase the suffering of people of color and marginalized groups. None of this is
comfortable to read about and it may be hard to confront. Facing these problematic legal practices
is critical to understanding how the law operates as well as gaining glimpses of how to do better in
listening to and amplifying marginalized voices. Even in many cases in which people of color win,
often the judge, or the other parties are permitted greater voice and representation and the victorious
plaintiff may be somehow silenced or almost absent, as is the case in Mulloy v. Hop Sang, the Canadian
case featuring an unwanted amputation.
These cases are also me ant to give you a sense of how sometimes tort law did redress some forms
of social injustice; maybe not fully enough, maybe not always, but at least in some instances. In some
instances, tort law can operate as a form of civil rights protection, as in Ruiz v. Bertolotti in which
the court struggles to fit the fact pattern into its existing torts and yet decides not to ignore the
defendant’s wrongful behavior despite the technical hurdles it must overcome to do so.
Finally, the last case in this Module, Cobbs v. Grant, provides a fact pattern that allows you to revisit
negligence and test your high-level understanding of the distinctions between negligence and the
intentional torts, framed against the backdrop of a medical malpractice fact pattern. It also reaffirms
how the interests in battery extend well beyond the scope of a broke n bone or bruise to protect a
deep and robust form of patient autonomy.
Over the course of the ne xt few classes, we will encounter sometimes painful or triggering material
pertaining to race and gender, but it is material that helps us understand the scope of tort law’s reach,
historically, and currently. It also helps us understand what tort law has avoided doing, and silences
tort law has created by defining the suffering in society to count, or not to count, as cognizable under
its doctrines.

A note about the anachronism of reading older cases: these cases remain relevant for today’s

62 | Introduction to the Intentional Torts: Protecting Property, Body, and Mind

learning but reading them requires that we adopt some respectful norms of discourse. Older cases
use terms that are out of date and sometimes downright offensive. Your class may develop ground
rules for how to discuss sensitive issues, or address class norms in the syllabus. These suggestions
offer an alternative, but please follow your course’s conventions if those are explicitly provided.
If you are reading from an opinion, you may quote the case language verbatim if you need to do so.
Some students may feel that doing so is always unnecessary or triggering, but law school requires
that students learn to summarize and paraphrase accurately and in some cases verbatim quotation is
the safest or most accurate or efficient means of proceeding. Other students may feel that if it’s in
the opinion, it is language that can be used with impunity. In addition to these contrasting views,
Professors may also wish to meet their pedagogical goals and hold a stimulating conversation
without sacrificing an entire class only to the problems of controversial terminology. Your professor
will decide how much attention to give this issue, of course, and whether to set ground rules for class
discussions. Unless otherwise instructed, I encourage you to consider the following.
• If you are paraphrasing or describing the case, do not use the offensive term; use 21st century
terms instead. For example, in the Texas cases below, instead of using the terms it uses
(“colored” and “Negro woman”), use the contemporary terms, “African American” or “Black”
unless you are reading the exact language of the case.
• Lawyers cannot and should not shrink from the ugliness in our laws whether it is historical or
contemporary. As they consider how to increase equity in the legal system, law students should
keep in mind that refraining from critiquing racist legal statements or concepts embedded in
our laws amounts to ratifying them through silence. However, I invite you to be thoughtful
about whether and when hateful or offensive language needs to be read aloud. It is painful for
many to hear judicial language that encodes and authorizes racism and other forms of
discrimination, especially without explicit censure that signals a break with that past.

Questions for the Readings
As you read the next few cases, please keep the following questions in mind:
• Why does it matter if an action is brought in negligence versus the intentional torts?
• What interests does each of the domains protect, and what sorts of conduct does each regulate?
• What do you observe about how culpability is defined and determined?
• What do you note about the rhetoric, and judicial voice, in these opinions?

The Tort of Trespass
“A trespasser is a person who enters or remains upon land in the possession of another without a
Introduction to the Intentional Torts: Protecting Property, Body, and Mind | 63

privilege to do so created by the possessor’s consent or otherwise.” Restatement Second of Torts Sec.
329.
For a plaintiff to succeed in bringing a claim of trespass, they will need to prove the following
elements:
• unauthorized entry upon land
• with intent
If a person enters the land of another, moving with the required level of intent that entry is a trespass
if it was made without permission or beyond the permission granted. The mail carrier has a privilege
to enter upon land to deliver and retrieve mail, for instance, but it is a trespass if when they drop
off the mail the y also pick flowers from the garden or plant seeds for the benefit of the owner. A
vacationer who rents a home for a month is permitted there during that time but staying any amount
of time past the checkout date triggers the start of a trespass.
In the full Module on the intentional torts, you will learn more about the intent requirement. In brief,
if the defendant intended to move and then trespassed through that movement, intent is satisfied.
Stating that she lost her way will not help the defendant: the intent required is the intent to move
forward in space and to be whe re one is (even if it is not where one thought that was). Mistake does
not invalidate intent because the intent is not directed at knowledge of the land’s boundaries but
rather at the volitional movement. Nonvolitional movement does not satisfy the intent requirement.
If the defendant was drugged and dropped on someone else’s land or catapulted onto someone else’s
land the intent element for trespass is not met. In a certain sense, trespass can be se en as analogous
to strict liability in that if a person appears without permission on the land of another, they are
technically trespassing, regardless of their fault or intent, so long as they arrived there by their own
volition. The ne xt case pushes that notion to its outer limit and synthesizes important principles of
intent and causation.

Guille v. Swan, Supreme Court of New York (1822)
(19 Johns. 381)
[Editor’s note: please note that the Supreme Court of New York is a trial court, not the highest court
in that state. Somewhat confusingly, New York’s highest court is called the Court of Appeals.]
1

[Rule:] If an act done cause imme diate injury, whether it be intentional or not, trespass lies; and if
done by the co-operation of several persons, all are trespassers, and all may be sue d jointly, or one is

1. Editor’s note: “Trespass” here is a reference to an older form of legal action involving a direct injury, and it does not
necessarily or only refer to trespass in the ordinary sense in which you are probably familiar with it, meaning
unauthorized entry onto someone else’s land. “Lies” here means “exists as a viable legal action.”
64 | Introduction to the Intentional Torts: Protecting Property, Body, and Mind

liable for the injury done by all; but it must appear that they acted in concert, or that the act of the
one sued, ordinarily and naturally, produced the acts of the others.
[Application and Holding:] As, where the de fendant, G., ascended in a balloon, which descended a
short distance from the place of ascent, into the plaintiff’s garden; and the defendant, being entangled,
and in a perilous situation, called for help, and a crowd of people broke through the fences into the
plaintiff’s garden, and beat and trod down his vegetables and flowers: Held, that though ascending in
a balloon was not an unlawful act; yet, as the defendant’s descent under the circumstances, would
ordinarily and naturally draw the crowd into the garden, either from a desire to assist him, or to gratify
a curiosity which he had e xcited, he was answerable in trespass for all the damage done to the garden
of the plaintiff.
In error, on certiorari, to the Justices’ Court in the city of New-York. Swan sued Guille in the Justices’
2

Court, in an action of trespass, for entering his close, and treading down his roots and vegetables, &c.
in a garden in the city of New-York. The facts were, that Guille ascended in a balloon in the vicinity
of Swan’s garden, and descended into his garden. When he descended, his body was hanging out of
the car of the balloon in a very perilous situation, and he called to a person at work in Swan’s field,
to help him, in a voice audible to the pursuing crowd. After the balloon descended, it dragged along
over potatoes and radishes, about thirty feet, when Guille was taken out. The balloon was carried
to a barn at the farther end of the premises. When the balloon descended, more than two hundred
persons broke into Swan’s garden through the fences, and came on his premises, beating down his
vegetables and flowers. The damage done by Guille, with his balloon, was about 15 dollars, but the
crowd did much more. The plaintiff’s damages, in all, amounted to 90 dollars. It was contended before
the Justice, that Guille was answerable only for the damage done by himself, and not for the damage
done by the crowd. The Justice was of the opinion, and so instructed the jury, that the defendant was
answerable for all the damage s done to the plaintiff. The jury, accordingly, found a verdict for him, for
90 dollars, on which the judgment was given, and for costs.
SPENCER, Ch. J., delivered the opinion of the Court.
The counsel for the plaintiff in error [Editor’s note: this is now the defendant, Guille] supposes, that
the injury committed by his client was involuntary, and that done by the crowd was voluntary, and
that, therefore, there was *382 no union of intent; and that upon the same principle which would
render Guille answerable for the acts of the crowd, in treading down and destroying the vegetables
and flowers of S., he would be responsible for a battery, or a murder committed on the owner of the
premises.
The intent with which an act is done, is by no means the test of the liability of a party to an action of
trespass. If the act cause the imme diate injury, whether it was intentional, or unintentional, trespass
is the proper action to redress the wrong. It was so decided, upon a review of all the cases, in Percival

2. Editor’s note: This now is a reference to trespass in the ordinary sense of unauthorized entry on someone else’s land,
which the law calls a “close.” 87 C.J.S. TRESPASS § 66. Here, the “close” is a reference to the property owned by the
plaintiff, Swan.
Introduction to the Intentional Torts: Protecting Property, Body, and Mind | 65

v. Hickey. (18 Johns. Rep. 257.) Where an imme diate act is done by the co-operation, or the joint act
of several persons, they are all trespassers, and may be sue d jointly or severally; and any one of them
is liable for the injury done by all. To render one man liable in trespass for the acts of others, it
must appear, either that they acted in concert, or that the act of the individual sought to be charged,
ordinarily and naturally, produced the acts of the others.
The case of Scott v. Shepard, (2 Black. Rep. 892) is a strong instance of the responsibility of an
individual who was the first, though not the imme diate, agent in producing an injury. Shepard threw a
lighted squib, composed of gunpowder, into a market house, where a large concourse of people were
assembled; it fell on the standing of Y., and to prevent injury, it was thrown off his standing, across the
market, when it fell on another standing; from thence, to save the goods of the owner, it was thrown to
another part of the market house, and in so throwing it, it struck the plaintiff in the face, and, bursting,
put out one of his eyes. It was decided, by the opinions of three Judges against one, that Shepard was
answerable in an action of trespass, and assault and battery. De Grey, Ch. J., held, that throwing the
squib was an unlawful act, and that whatever mischief followed, the person throwing it was the author
of the mischief. All that was done subse quent to the original throwing, was a continuation of the first
force and first act. Any innocent person removing the danger from himself was justifiable; the blame
lights upon the first thrower; the new direction and new force, flow out of the first force. He laid it
down as a principle, *383 that every one who does an unlawful act, is considered as the doer of all that
follows. A person breaking a horse in Lincolns-Inn-Fields, hurt a man, and it was held, that trespass
would lie. In Leame v. Bray, (3 East Rep. 595,) Lord Ellenborough said, if I put in motion a dangerous
thing, as if I let loose a dangerous animal, and leave to hazard what may happen, and mischief ensue,
I am answerable in tre spass; and if one (he says) put an animal or carriage in motion, which causes an
immediate injury to another, he is the actor, the causa causans.

3

I will not say that ascending in a balloon is an unlawful act, for it is not so; but, it is certain, that
the æronaut has no control over its motion horizontally; he is at the sport of the winds, and is to
descend when and how he can; his reaching the e arth is a matter of hazard. He did descend on the
premises of the plaintiff below, at a short distance from the place where he ascended. Now, if his
descent, under such circumstances, would, ordinarily and naturally, draw a crowd of people about
him, either from curiosity, or for the purpose of rescuing him from a perilous situation; all this he
ought to have foreseen, and must be responsible for. Whether the crowd heard him call for help or
not, is immaterial; he had put himself in a situation to invite help, and they rushed forward, impelled,
perhaps, by the double motive of rendering aid, and gratifying a curiosity which he had e xcited. Can it
be doubte d, that if the plaintiff in error had beckoned to the crowd to come to his assistance, that he
would be liable for their trespass in entering the enclosure? I think not. In that case, they would have
been co-trespassers, and we must consider the situation in which he placed himself, voluntarily and

3. A Black’s Law Dictionary—or Google—will help you cut through the Latin terms you’ll encounter in law school. If an
unfamiliar term doesn’t obstruct your understanding, you might just keep reading without looking it up, and only look it
up after you’ve read the case so that it doesn’t break your flow. However, I would strongly encourage you to look up a
Latin phrase (or other term) if you’re still not sure what it means after reading the case. Here, “causa causans” means the
primary or originating cause, the cause of the things (or even the causes) that follows that first cause. It’s used to trace
damages back to an original source of liability.
66 | Introduction to the Intentional Torts: Protecting Property, Body, and Mind

designedly, as equivalent to a direct request to the crowd to follow him. In the present case, he did call
for help, and may have be en heard by the crowd; he is, therefore, undoubtedly, liable for all the injury
sustained.
Judgment affirmed.
Note 1. This is an action formally brought in trespass rather than negligence or strict liability partly
because in 1822, American tort law was still in its infancy and trespass provided a direct means to
analyze the invaded interests. However, under the later-published Restatement Sections 519 (applying
strict liability to ultra-hazardous activities) and 520 (defining ultra-hazardous activities), flying an
air balloon would now require imposition of strict liability. Indeed, in the comments to Section 520,
aviation is provided as a quintessential example though, as the following dicta make cle ar, that could
always change depending on the calculus of risk and available precautions involved in the activity:
[Aviation in its present state of development is ultrahazardous because the be st constructed
and maintained aeroplane is so incapable of complete control that flying creates a risk that the
plane e ven though carefully constructed, maintained and operated, may crash to the injury of
persons, structures and chattels on the land over which the flight is made’ (emphasis supplied).
And in comment ‘g’ a distinction is made be tween airplanes and automobiles, upon the ground
that ‘the use of automobiles has become so common to the great mass of inhabitants of the
United States and the residuum of risk which cannot be eliminated by careful driving and
maintenance is so small that the driving of ordinary types of automobiles is not regarded
as ultra-hazardous. On the other hand, aviation has not as yet become either a common or
essential means of transportation. This, coupled with the fact that as yet aeroplanes have not
been so perfected as to make them subject to a certainty of control approximating that of
which automobiles are capable, and with the serious character of harm which an aeroplane out
of control is likely to do to persons, structures or chattels on the land over which it flies make
it proper to regard aviation as an ultra-hazardous activity.’”) Wood v. United Air Lines, Inc., 223
N.Y.S.2d 692, 696–97 (Sup. Ct. 1961), aff’d sub nom. Wood v. United Air Lines, 226 N.Y.S.2d 1022
(1962)
Note 2. Commentators and later cases often treat the case as having decided the trespass under strict
liability. Do you see why, based on the court’s legal reasoning?
Note 3. The defendant tries to distinguish the defendant’s conduct as “involuntary” and the crowd’s as
“voluntary,” but the court rejects this. How and why?
Note 4. Do you think the balloonist kne w, or should have known this was an outcome that was
possible? Or even likely? How might it affect your thinking one way or another?

Check Your Understanding – Set 7

Introduction to the Intentional Torts: Protecting Property, Body, and Mind | 67

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=31#h5p-14

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=31#h5p-15

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=31#h5p-16

The Tort of Battery
For a plaintiff to succeed in bringing a claim of battery, they will need to prove the following elements:
• unauthorized bodily contact by the defendant, which is
• harmful or offensive in nature, and
• made with intent by the defendant.
Battery is the most significant intentional tort in terms of protecting individual rights to bodily
autonomy and freedom from invasions and harms by others. The quintessential element in a civil
battery is that it violated the victim’s consent either by being entirely unauthorized or by exceeding
the scope of the consent the victim granted the tortfeasor. The conduct doesn’t have to be “harmful”
in the se nse of leaving bruises or scars; it may be harmful in other ways because it is traumatizing, or
precisely because the physical harms are not as readily discernible.

Note that battery does not necessarily require physical harm: the tort does not protect only against

68 | Introduction to the Intentional Torts: Protecting Property, Body, and Mind

harm to the body; it protects the person’s right to decide what can be done to their body. And it
doesn’t protect against accidental bumps or jostles in the ordinary course of moving around in
today’s often crowded world. But it does provide protection for a person’s physical autonomy, which
is a broader interest than mere protection against bruises or broken bones.

Tortious contact may also qualify as “offensive.” While there is undeniably a subjective element here,
a plaintiff cannot simply claim any contact at all was offensive; there are some se ttled cases as well as
state laws that tend to define what makes the contact offensive, such as by stating that the contact
was done without authorization and with anger or rudeness. Where there is no lasting or discernible
harm so as to make the contact “harmful” but it is provably “offensive,” a court may order “nominal
damages.” These are damages in name only, or damages not designed to compensate mone tarily but
instead to provide an official recognition of the invasion of the plaintiff’s bodily autonomy and to
deter future wrongdoing. While one could argue that nominal damages are not worth the costs of
litigation, they remain an important way of signaling the boundaries of duties and rights between
parties. Sometimes nominal damages may be accompanied by payment of legal fees to the winning
party, which can make a significant difference.
The following hypothetical provides an illustration.

Hypothetical: Wrong Ear Surgery Problem
In the e arly 1900s, an experienced and reputable ear doctor saw a woman complaining of a problem
in her right ear. As is customary, he e xamined both ears. He couldn’t make a full diagnosis of the left
ear (“owing to foreign substances therein.” Consider yourselves warned: tort law will often feel a little
TMI). The right ear revealed that there was a perforation in the lower portion of the drum membrane
and a large polyp in the middle e ar which indicated that some bones of the middle e ar were probably
diseased. The patient was nervous about undergoing general anesthesia, which remains risky even
today but was riskier still at that time. After consulting with her family doctor, who agreed to be in the
room during the surgery, and after several other consultations with the surgeon who would repair her
right ear, she agreed to go forward with the surgery. During the surgery, when he could get a better
look at it, the surgeon discovered that the right ear wasn’t in need of the surgery, but the left ear
was. The surgeon showed the family doctor, who agreed with this assessment, and then the surgeon
went ahead and performed skillful surgery on the left ear. After the surgery, the patient was upset to
learn that the surgery had not been done as scheduled on her right ear, and had happened instead on
her left ear, which had not been described to her as diseased in any way before that. She complained
of new pain and hearing problems apparently not present before the surgery, or at least not serious
enough for her to bring them to her doctor then. She sued for battery, but not medical malpractice.
Practice applying the elements of battery (listed above). Can you see why there is a battery here?

Introduction to the Intentional Torts: Protecting Property, Body, and Mind | 69

Note 1. This hypothetical fact pattern was based on a classic torts case that is still the le ading case
nationally on consent to unauthorized operations. Mohr v. Williams, 95 Minn. 261 (Minn. 1905). The
court ruled in Mohr’s favor, finding a battery and awarding Mohr $14,322.50, a huge sum in that era.
The surgeon successfully appealed the damages award, and the ne w trial produced the considerably
lower award of $39 for the plaintiff. (The opinion was later overruled on a narrow issue pertaining to
damages in Genzel v. Halvorson, 248 Minn. 527 (1957).)
Note 2. Ms. Mohr’s original damages award, of $14,322.50 would equal $417,295.80 in today’s currency,
4

using a basic tool to account for inflation. Similarly, $39 in U.S. dollars from 1905, when Mohr was
decided, is roughly equivalent to $1,136.29 in 2020 U.S. dollars. When adding the expenses of hiring
counsel to bring not just one, but two lawsuits, including an appeal of the first, does this seem like a
fair outcome? Recall that the court found there was a battery “on the merits” (on the legal question at
issue), but also that there did not appear to be any errors or lack of skill by the surgeon.
Note 3. Mohr’s reasoning, included below, helps demonstrate the interests protected by the tort of
battery. The court emphasized the law’s commitment to a patient’s right to bodily autonomy, including
making medical decisions for themselves:
This particular question is new in this state. At least, no case has be en called to our attention
wherein it has been discussed or decided, and very few cases are cited from other courts.
We have given it very deliberate consideration, and are unable to concur with counsel for
defendant in their contention that the consent of plaintiff was unnecessary. The e vidence
tends to show that, upon the first examination of plaintiff, defendant pronounced the left ear
in good condition, and that, at the time plaintiff repaired to the hospital to submit to the
operation on her right ear, she was under the impression that no difficulty existed as to the
left. In fact, she testified that she had not previously experienced any trouble with that organ.
It cannot be doubte d that ordinarily the patient must be consulted, and his consent given,
before a physician may operate upon him.
It was said in the case of Pratt v. Davis…: ‘Under a free government, at least, the free citizen’s
first and greatest right, which underlies all others—the right to the inviolability of his person;
in other words, the right to himself—… necessarily forbids a physician or surgeon, however
skillful or eminent, who has been asked to examine, diagnose, advise, and prescribe (which are
at least necessary first steps in treatment and care), to violate, without permission, the bodily
integrity of his patient by a major or capital operation, placing him under an anaesthetic for
that purpose, and operating upon him without his consent or knowledge.’
1 Kinkead on Torts, § 375, states the general rule on this subje ct as follows: ‘The patient must be
the final arbiter as to whether he will take his chances with the operation, or take his chances
of living without it. Such is the natural right of the individual, which the law recognizes as

4. https://www.officialdata.org/us/inflation/1905?amount=14322.50 Using a more complicated set of inputs, it could be
considered $2,690,000 in relative income using 2019’s currency.
70 | Introduction to the Intentional Torts: Protecting Property, Body, and Mind

a legal one, Consent, therefore, of an individual, must be either expressly or impliedly given
before a surgeon may have the right to operate.’
There is logic in the principle thus stated, for, in all other trades, professions, or occupations,
contracts are entered into by the mutual agreement of the interested parties, and are required
to be performed in accordance with their letter and spirit. No reason occurs to us why the
same rule should not apply between physician and patient. If the physician advises his patient
to submit to a particular operation, and the patient weighs the dangers and risks incident to
its performance, and finally consents, he thereby, in effect, enters into a contract authorizing
his physician to operate to the e xtent of the consent given, but no further. It is not, however,
contended by defendant that under ordinary circumstances consent is unnecessary, but that,
under the particular circumstances of this case, consent was implied; that it was an emergency
case, such as to authorize the operation without express consent or permission.
The me dical profession has made signal progress in solving the problems of health and disease,
and they may justly point with pride to the advancements made in supplementing nature and
correcting deformities, and relieving pain and suffering. The physician impliedly contracts that
he possesses, and will exercise in the treatment of patients, skill and learning, and that he
will exercise reasonable care and e xert his best judgment to bring about favorable results. The
methods of treatment are committed almost exclusively to his judgment, but we are aware
of no rule or principle of law which would extend to him free license respecting surgical
operations. Reasonable latitude must, however, be allowed the physician in a particular case;
and we would not lay down any rule which would unreasonably interfere with the e xercise
of his discretion, or prevent him from taking such measures as his judgment dictated for the
welfare of the patient in a case of emergency.
Note 4. Ms. Mohr continued to complain of pain in her left ear. Should tort law be the source of her
remedy, and if so, why? What does your answer depend on?
Note 5. What sorts of additional facts do you think might have made it reasonable for Dr. Williams to
operate on Ms. Mohr’s left ear, even without her consent?
Note 6. Do you see why this is not a medical malpractice case?
Note 7. What do you imagine are the consequences of a ruling like this, in terms of physician behavior
and the practices adopted by institutions such as hospitals?

Check Your Understanding – Set 8

Introduction to the Intentional Torts: Protecting Property, Body, and Mind | 71

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=31#h5p-17

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=31#h5p-18

Mulloy v. Sang, Alberta Supreme Court, Appellate Division (1935)
(1 W.W.R. 714)
The

plaintiff’s claim is for professional fee
s for an operation involving the

amputation of the

defendant’s hand which was badly injured in a motor-car accident. The accident took place ne ar the
town of Cardston and the defendant was taken to the hospital there. The plaintiff, a physician and
surgeon duly qualified to practice, was called to the hospital and the defendant, being a stranger and
unacquainted with the plaintiff, asked him to fix up his hand but not to cut it off as he wanted to have
it looked after in Lethbridge, his home city. Later on in the operating room the defendant repeated
his request that he did not want his hand cut off. The doctor, being more concerned in relieving
the suffering of the patient, replied that he would be governed by the conditions found when the
anaesthetic had been administered. The defendant said nothing. As the hand was covered by an old
piece of cloth and it was necessary to administer an anaesthetic before doing anything, the doctor
was not in a position to advise what should be done. On examination he de cided an operation was
necessary and the hand was amputated.
Dr. Mulloy said the wounds indicated an operation as the condition of the hand was such that delay
would mean blood poisoning with no possibility of saving it. In this he was supported by the two other
attending physicians. I am, however, not satisfied that the defendant could not have be en rushed to
Lethbridge where he e vidently wished to consult with a physician whom he kne w and relied on. Dr.
Mulloy took it for granted when the defendant, a Chinaman without much education in English and
probably not of any more than average mentality, did not reply or make any objection to his statement
that he would be governed by conditions as he found them, that he had full power to go ahead and
perform an operation if found necessary. On the other hand, the defendant did not, in my opinion,

72 | Introduction to the Intentional Torts: Protecting Property, Body, and Mind

understand what the doctor meant, and he would most likely have refused to allow the operation if he
did. Further, he did not consider it necessary to reply as he had already given explicit instructions.
Under these circumstances I think the plaintiff should have made full e xplanation and should have
endeavoured to get the defendant to consent to an operation, if necessary. It might have be en
different if the defendant had submitted himself generally to the doctor and had pleaded with him
not to perform an operation and the doctor found it necessary to do so afterwards. The defendant’s
instructions were precedent and went to the root of the employment. The plaintiff did not do the work
he was hired to do and must, in my opinion, fail in his action.
The defendant has counterclaimed for damages in the sum of $400, being $150 for an artificial hand
and the balance for loss of wages due to the operation and possibly general damages.
In my opinion the operation was necessary and performed in a highly satisfactory manner. Indeed,
there was no suggestion otherwise. The damage and loss and the cost of an artificial hand are the
results of the accident and not the unauthorized operation. The defendant, however, is, in my opinion,
entitled to damages because of the trespass to the person, which at the same time be came trespass ab
initio, having in mind the old case of The Six Carpenters (1610) 8 Co. Rep. 146a, 77 E.R. 695. The damages
are per se and should be more than nominal. Personally, I in a similar position might have be en able
to satisfy myself that the operation was necessary, and that I should be glad to pay the reasonable fee
charged, but it was not my hand and the defendant will always no doubt feel that he might have saved
the hand if he had consulted with a doctor he kne w. While I might have be en able to forego my rights,
I cannot ask the defendant to do so and he is entitled to rely on his rights. There also must have be en
some shock to him whe n he found out his hand had been taken off in the manner in which it was, over
and above the ordinary shock from an operation. His damages, should, therefore, be substantial but
only sufficient to make them substantial rather than nominal. I place the amount at $50.
The action is dismissed with costs and the defendant is entitled to his costs of the counterclaim.
Note 1. Using the same inflation calculator and basic assumptions, the $50 Hop Sang was awarded for

5

his wrongfully removed hand in 1822 produces a value of roughly $921.62 in today’s Canadian dollars.

Even if we assume d Sang had been awarded $10,000 in today’s Canadian dollars, do you think that
would provide ade quate compensation for the injury? Why or why not? Is there a number at which
your answer changes?
Note 2. The judicial voice spe aks for Sang at several points, imagining what the plaintiff might have
thought or felt and distinguishing his own views (“Personally, I in a similar position… but it was not
my hand”; “While I might have be en able to forego my rights, I cannot ask the defendant to do so”).
Why do you think he does not cite to the plaintiff’s own testimony on these issues? What other
observations do you have about the way the court describes both the plaintiff’s views and his own
about the surgery?

5. https://www.officialdata.org/canada/inflation/1935?amount=50
Introduction to the Intentional Torts: Protecting Property, Body, and Mind | 73

Exam Tip: In the case of both trespass and battery, often the conduct in question qualifies as a
violation because it exceeds the scope of consent. For instance, at the end of a dinner party, a guest
leaves, but secretly sits in the driveway, just out of sight of the hosts, to sober up before driving.
Technically, the social event has ended, and their permission to remain on the host’s land is unclear.
Or to take another example, a romantic partner usually allows their partner to hold their hand all the
way through the movie but doesn’t want to this time. The attempt to withdraw the hand signals that
consent is withdrawn and a second attempt to shake free of the grip, when their partner is still
holding onto their hand, makes that desire clear: any remaining contact from that point is technically
a battery. Sometimes such instances may be called technical trespass or a technical battery, for
which, as noted above, the damages may be nominal or minimal (depending on the precise facts). But
the liability will still attach even if the damages are low or non-existent

Part II. Protecting the Mind: Assault and Emotional Harms
The Tort of Assault
Like the tort of battery, the tort of assault must be kept distinct from its criminal counterpart. In the
civil context, to bringing a successful claim of assault, the plaintiff will need to prove the following
elements:
• an act, or threat of an action
• done with intent, that
• creates in the plaintiff a reasonable apprehension of
• imminent bodily harm
The scope of the tort has been critiqued for what it recognizes and excludes. The tort was intended
to be construed narrowly, a true protection against harm almost immediately upon the victim, and
thus many threats that promise harm in the future fall outside the scope of the tort by failing the
imminence requirement. Later in the course, you will learn about the prospect of recovering for
emotional damages or distress suffered without accompanying physical injuries. For now, the focus is
on “fright” or more precisely, on awareness of harm that is imminent and reasonably perceived, not
merely imagined.
A Note on Terminology: “Objective” versus “Subjective.” When the law uses the word “reasonable,”
it is signaling its use of an objective standard. The legal meanings of “objective” and “subjective”
differ from the lay meanings. Ordinarily, subjective me ans “influenced by personal feelings or tastes;
emotional or intuitive.” Objective me ans not influenced by personal feelings or tastes; impersonal;
fact-based; unbiased; nonpartisan; disinterested or even scientific. In law, however, subjective me ans
74 | Introduction to the Intentional Torts: Protecting Property, Body, and Mind

particularized to the person in question; objective me ans abstracted to a generalized level: what
would the reasonable person have felt or done under such circumstances, rather than what the
plaintiff himself actually felt or did. This distinction between objective and subje ctive states of mind or
assessments of conduct will grow in importance throughout your study of tort law. For instance, the
intent standard for the intentional torts is subjective: we care what this particular defendant thought
or knew when they acted. In assault, the apprehension of imminent bodily harm is objective:
would an ordinary reasonable person have be en placed in apprehension of harm? This allows tort
law to e
xclude

from protection someone

overly sensitive

who would qualify under a subjective

standard (tailored to that individual) but who cannot recover if reasonable pe ople would not share the
apprehension under those circumstances.
Most significantly of all, negligence is determined using an objective standard: it uses a general
measure base d on classes of people (physicians, blind people, adults, elderly or very young people)
rather than a particular defendant: what would a reasonable person have done unde r the circumstances,
not what did this defendant believe was reasonable to do under the circumstances? Negligence broadens
its scope of liability by asking not just what the plaintiff knew or did but what the reasonable person
would have known or would have done . In some instances, a given tort or rule will incorporate
both perspectives. For example, in battery, the perspective for whether contact is offensive is first
objective: would the reasonable plaintiff find the contact offensive, not whether this plaintiff did?
Once that hurdle is cle ared, it is also necessary to determine whether the plaintiff did in fact find
it offensive. Contact must be obje ctively considered offensive, at a minimum as well as subjectively,
by this plaintiff, considered offensive. The rationale is straightforward: if you’re insensitive and didn’t
mind the contact but know others would find it offensive, tort law does not permit you to receive
a windfall by suing for something you happened not to mind. Most students find the obje ctive/
subjective distinction confusing at first but eventually manageable, partly because it’s a concept they
will see over and over in torts and in other classes in their first year and beyond.

Questions for the Readings
As you read the next few cases, please keep the following questions in mind:
• What interests is tort law seeking to protect? Against what sorts of harms or invasions, and by
whom or what? Note where you see courts describing the interests they are protecting (or
declining to protect) and put in your own words how the court justifies its decision.
• What sorts of limits can you identify in the law’s protection of these interests? How does—and
how should—the law draw these limits? Why are such limits necessary?
• In what ways do these legal rulings illustrate, entrench or subvert power dynamics or social
status in our society? In what ways could they be amended to create new possibilities?
• If you do not see either entrenchment or possibilities for change, would any of the cases read
differently for you if the age/gender/race/ability/sexual orientation/general identity of one or
more of the parties changed? Would the situation strike you as different if a corporation, instead
of an individual, were one of the parties?
Introduction to the Intentional Torts: Protecting Property, Body, and Mind | 75

Background Tort Doctrines: The Common Carrier Doctrine and
Vicarious Liability
Two legal doctrines will be helpful to your reading of the ne xt case, Gulf, Colorado & Santa Fe Railway
Co. v. Luther.
First, the

“common carrier” doctrine

historically applied to or companies engaged in the

transportation of customers from place to place for compensation (such as public railroads, bus lines,
taxi companies, airlines, cruise ship lines, or other similar entities). Tort law has traditionally imposed
a higher standard of care on common carriers in order to protect consumers, though this has varied
by state and eroded somewhat over time. In New York, for instance, there is no longer a heightened
duty; common carriers owe the same duty of “reasonable care” as any other possible tortfeasors. But
in the era before me aningful consumer protection laws arose in the first decades of the twentieth
century, this heightened duty was an important means of ensuring passengers’ safety and comfort.
Second, under the “vicarious liability” doctrine, an employer is responsible for the tortious conduct of
their employees while the employees are working “within the scope of their employment.”
This generally means that employers are liable for their employees while employees are engaged in
work-related acts and efforts during work (and thus excludes bad behavior or carelessness outside
of work or actuated by personal rather than professional motivations). Vicarious liability is a very
important doctrine that you will see again se veral times in this course, especially with respect to
negligence and how to consider the effects of potentially having multiple parties at fault. It is also
significant in a number of upper-division courses, so it’s spending time dividing a bit more de eply into
its origins, purposes and scope before proceeding.
Introduction to Vicarious Liability
Vicarious liability allows victims of tortious conduct to recover against the employer for the conduct
by their employee under certain circumstances. The ability to pursue
employer—who is almost always the

party with the

a case

against the

“deepest pockets” or greatest capacity to

remunerate the plaintiff for their losses—is often of profound benefit to the victim. As this doctrine
was developing in 18th-century England, jurists labeled it with the Latin phrase, “respondeat superior,”
roughly meaning “let the pe rson in the position of higher power respond” for the wrongdoing of
the person in their employment or supervision. The terms used to characterize labor relations were
6

“master” and “servant,” rather than the more modern employer and employee or principal and agent.

Vicarious liability can be taught at many different points in an introduction to tort law, because it plays

6. The underlying legal reasoning for the doctrine is illustrated in this case: “If the servants of A with his cart run against
another cart, wherein is a pipe of wine, and overturn the cart and spoil the wine, an action lieth against A. So where a
carter’s servant runs his cart over a boy, action lies against the master for the damage done by this negligence: and so it
is if a smith’s man pricks a horse in shoeing, the master is liable. For whoever employs another, is answerable for him,
and undertakes for his care to all that make use of him. The act of a servant is the act of his master, where he acts by
authority of the master.” Jones v Hart, 90 E.R. 1255 (Court of King’s Bench) 1703.
76 | Introduction to the Intentional Torts: Protecting Property, Body, and Mind

a role in so many cases, and it is not limited to one kind of tort. One way to understand its effect,
however, is to consider it a form of strict liability: the employer is not necessarily at fault but under the
doctrine, liability is allocated to the employer anyway, by virtue of the relationship between employer
and employee. Note that it is often possible for an employer also to be separately at fault: consider the
following scenario.
Pizza Delivery Hypothetical. A delivery driver is the employee

of a restaurant and drives

negligently—under the influence of hallucinogenic drugs—while delivering one of their pizzas. When
the driver causes a car accident that injures someone, the employer would ordinarily be vicariously
liable for the victim’s injuries because the driver is an employee acting in the scope of employment.
This would be the case e ven if the restaurant (or its owners) displayed no fault with respect to the
accident; in this scenario, assume that the employer isn’t driving or present or directly involved. This is
because tort law allocates vicarious liability to the employer for their employees’ actions so long as the
actions occur within the scope of employment. To prevail on this claim, a plaintiff would need to prove:
a) that the driver was an employee (as opposed to an independent contractor or a driver who made
unauthorized use of a company vehicle, such as a thief) and b) that the accident happened during the
scope of employment (that is, not outside or after work such as during a lunch break or commuting to
and from home, even if driving a corporate vehicle) and c) that there was negligence on the part of the
employee, that is, that the employee had a duty of reasonable care that they breached, thus causing the
plaintiff’s harm. If negligence analysis fails on some element with respect to the employee’s conduct,
the plaintiff will not have a vicarious liability claim against the employer.
However, an alternate (or additional) theory of liability might seek to show that the employer’s hiring,
training or retention was negligent. This would not be a vicarious liability claim but a separate claim
seeking to prove some thing else. Perhaps the employer overlooked a prior record of DUI’s that a
background check could have brought to light (which might constitute negligent hiring); or failed
to make its rules and policies clear (which could constitute negligent training and supervision); or
failed to fire the driver after the company discovered he routinely had been delivering their product
while stone d (which would constitute negligent retention). Just because a vicarious liability claim is
unavailable does not mean that all is lost for a plaintiff, and conversely, merely establishing that a
vicarious liability claim might exist is not dispositive of whether a negligence claim is available against
the employer. The two are independent of each other and indeed, as this hypothetical shows, the two
kinds of claims focus their inquiries on the behavior of different entities.
The most common examples of vicarious liability in tort law arise in negligence but it is possible
for employees to commit intentional torts while serving their employer (such as when a bouncer
commits a technical battery by escorting a patron out of a nightclub but accidentally harms the
patron, for instance). More commonly, employee conduct that is intentionally tortious falls outside the
employer’s responsibility. The key, again, is if the employee is acting within or outside “the scope of
nd

employment.” The Restatement 2

of Agency Sec. 237 lays out the factors to consider in determining

whether something falls within the scope of employment (and it uses the old language of the common
law, “master” and “servant”):
To be within the scope of employment, an act must be of the sort authorized, done
within space and time limits fixed by the employment and accompanied by an intention
Introduction to the Intentional Torts: Protecting Property, Body, and Mind | 77

to perform service for the master. See §§ 233-236. If, having in mind either his master’s
business and his own, or only his master’s business, the servant departs too far from the
space or time limits, he no longer acts within the scope of employment.
These principles are widely applied in tort law with respect to employers and their employees as
well as “principals” and their “agents,” which permits a broader scope of potential liability than if
the rule were applicable only to employers and employees. There is an entire Restatement for the
law of agency, in fact, because

the

concept of agency plays a significant role

in corporate

law,

partnership law, and employment among others. Vicarious liability does not typically apply to the work
of contractors one hires. Put in the form of a rule: a hiring party is not vicariously liable for the torts
of their independent contractor.

Exam tip: a vicarious liability claim always requires an underlying act of tortious conduct. If there is
no tort (because the elements are not met or because there is a successful defense), then you need
not reach the issue of vicarious liability. Vicarious liability is not a rule that determines liability
based on conduct; it’s a rule that allocates liability based on a pre-existing determination of liability
(if the tests for vicarious liability are met). Always be sure to identify the underlying tort first, and
then consider whether vicarious liability will apply to it. Do not forget to ask, additionally or instead,
whether the employer is liable on the basis of their own conduct.

The rule that hiring parties are not liable for the torts of their independent contractors has numerous
rationales. Unlike employees, independent contractors are generally thought to stand on their own,
financially and legally. They are usually entities with their own insurance (“licensed, bonded and
insured” may be a phrase you have he ard), and they are likely to possess the desire and capacity to
control their own processes. Thus, they have the incentives to optimize for caution and efficiency.
They are also de emed (presumptively) to possess skill and training in their field. These factors tend
to mean that tort law’s purposes are served by fixing liability for their conduct with the independent
contractors themselves. However, courts are concerned that parties might attempt to contract so
as to characterize their working relations as hiring party/independent contractor, rather than
employer/employee, in an attempt to evade liability. In fact, this points to a larger policy concern.
When you take business organizations, you will learn that there is an ongoing concern about strategic
behavior, such as deliberate undercapitalization to enable parties to claim they are “judgment proof,”
or otherwise structuring entities and business practices to evade the liability that tort law’s principles
would ordinarily allocate following traditional rules and doctrines. Corporate law has developed many
means of trying to forestall this strategic behavior, and courts may “pierce the corporate veil” to
look through whatever structures entities are using in their potentially unlawful behavior. Somewhat
similarly, in torts cases, courts may “look through” contracts that treat parties as independent
contractors if those appe ar to be suspicious. The Restatement on Agency provides guidance on how
to assess hiring relationships and when to determine that there is, in fact, an employer/employee
relationship, whatever the parties might have attempted to create. It does so, in part, by defining the
relationship in terms of actual control or the right to control.

78 | Introduction to the Intentional Torts: Protecting Property, Body, and Mind

Scope of Employment—Restatement (Second) of Agency § 220. Definition Of Servant
(1) A servant is a person employed to perform services in the affairs of another and who with respect
to the physical conduct in the performance of the services is subject to the other’s control or right to
control.
(2) In determining whether one acting for another is a servant or an independent
contractor, the following matters of fact, among others, are considered:
(a) the e xtent of control which, by the agreement, the master may exercise over
the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or
business;
(c) the kind of occupation, with reference to whe ther, in the locality, the work
is usually done unde r the direction of the employer or by a specialist without
supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and
the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe the y are creating the relation of master and
servant; and
(j) whether the principal is or is not in business.
Note: The Restatement of Agency Second has been superseded by the Restatement of Agency Third,
which was adopted in 2005 and published in 2006. The case law you read will often reflect a reliance
on some version of these factors. Not all of them are ne cessarily mentioned in each case (and you
should not feel the need to apply all 10 of them on an exam question!) Often, courts pick the ones
most salient to apply to the facts at bar. This is a good example of how law school requires you to gain
substantive knowledge and also to de velop judgment about which things you know are most helpful
or relevant in a given moment.

Check Your Understanding – Set 9

Introduction to the Intentional Torts: Protecting Property, Body, and Mind | 79

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=31#h5p-19

Gulf, C. & S.F. Ry. Co. v. Luther, Texas Court of Civil Appeals (1905)
(40 Tex.Civ.App. 517)
This suit was brought by appellee to recover damages for an alleged insult to his wife, made by a
negro woman while in appellant’s employ as a waitress in attendance on the ladie s’ waiting room in
the passenger station of appellant at Ft. Worth, Tex., and for alleged nervous prostration of appellee’s
wife caused by such insult. The appellant answered by a general denial, and specially that the negro
woman was provoked to say what she did by opprobrious epithets addressed to her by appellee’s wife.
The trial of the cause resulted in a verdict and judgment against the appellant for $2,500.
Conclusions of Fact.
It is undisputed that appellant owns and operates a line of railroad extending through Hunt county to
Ft. Worth, Tex., and another line of road extending from Ft. Worth to Morgan, Bosque county, Tex.;
that it is, and was in August, 1903, a common carrier of passengers using said lines of railway for such
purpose; that during the month of August of the year aforesaid appellant, in connection with other
common carriers of passengers, was in possession, control, and use of a depot building on its roads in
Ft. Worth, Tex., for the use and accommodation of its passengers, in which there was a waiting room
7

set aside for the reception of its lady passengers and children; that this room was then entrusted by
appellant to a negro woman in its employ, the duties of whose employment were to keep the room
clean and in good order for its passengers, attend their wants, and minister to their comfort while
awaiting passage on its trains; that in the latter part of June, 1903, the plaintiff, with his wife and four
small children, having become passengers over appellant’s said lines of road from a station in Hunt
county to Morgan, Tex. (the latter station being their destination), arrived at its depot in Ft. Worth
about 7 o’clock in the morning for the purpose of taking one of its trains, which was due at 7:50 o’clock
that morning; that plaintiff, being informed that the train was late, left his wife and children in the

7. White women and children would wait in this room to be protected from the hustle and bustle of the railroad station,
apparently. Here, the husband has deposited his wife and children while he goes back out on the town on some sort of
errand as they all await the train. At least in this railroad station, an African-American woman was employed to keep the
waiting room clean and orderly.
80 | Introduction to the Intentional Torts: Protecting Property, Body, and Mind

waiting room for women and children which was in charge of the negro woman in appellant’s employ
charged with the duties aforesaid, and went out into the city to attend some matters of business.
The e vidence is reasonably sufficient to prove that during plaintiff’s absence from the depot the negro
woman, while in the discharge of her duties, became very angry about one of the plaintiff’s little
children accidentally spilling from a cup some water on the floor, and when informed by the child’s
mother, plaintiff’s wife, the spilling of the water by the child was unintentional, because the child did
not know the water was in the cup, the ne gro woman turned upon Mrs. Luther, and what was said and
done had best be told in her language: “When I told the negro woman that the child didn’t know the
water was in the cup, she turne d on me with an angry look, and said, ‘The child did know the water
was in the cup,’ and I told her that the child did not know that the water was in the cup. Then she
said to me, ‘If you say the child did not know that the water was in the cup you are a liar.’ I then said
to her, ‘I have not be en accustomed to be treated this way by colored people.’ She then replied: ‘I am
used to your kind. I meet up with them every day.’ During the conversation she was standing right
over me, shaking her finger right in my face, and looking vicious and angry. She stood over me about
five minutes, and said many things to me that I cannot remember, as I was very much frightened at
the time.” The negro woman testified differently as to what occurred, but, as the testimony of Mrs.
Luther is corroborated by other circumstances, and as the jury from its verdict evidently believed
her narration of the occurrence, we find it is true that Mrs. Luther, in consequence of the abuse and
ill-treatment by the negro, was greatly frightened, humiliated, worried, and distressed, causing her
nervous prostration, physical pain, and mental anguish, to plaintiff’s damage in the amount found by
the verdict.
Conclusions of Law.
8

The first assignment of error complains of the court’s overruling defendant’s amended motion for
a new trial, upon the ground that the verdict is contrary to the law and evidence and is e xcessive,
in that it fails to show that the sickness and physical pain suffered by Mrs. Luther were proximately
caused by the negligence of defendant. The outrageous conduct and language of the negro woman,
whether denominated negligence or not, were, because done by her as appellant’s servant and while
in the discharge of the duties of her employment, acts for which the appellant as a common carrier
of passengers is responsible and liable to plaintiff for all the damages proximately flowing therefrom.
That plaintiff’s wife suffered insult and indignity at the hands of appellant’s servant, and was treated
disrespectfully and indecorously by her under such circumstances as to occasion mental suffering,
humiliation, wounded pride, and disgrace, there can be little doubt. At least the jury might have so
found from the e vidence before them. And if it should be conceded that she suffered no physical injury
or sickness in consequence, still the appellant would be liable for the consequences of such wrongs
done to a passenger.
In considering the duties of carriers to their passengers, Hutchinson on Carriers, §§ 595, 596, states
the rule as follows: “The passenger is entitled, not only to every protection which can be use d by the

8. The “assignments of error” mentioned here are the grounds on which the case is being appealed, namely, that the court
below made errors that this appellate court should address (in the ways in which the appellant is seeking relief).
Introduction to the Intentional Torts: Protecting Property, Body, and Mind | 81

carrier for his personal safety, but also to respectful treatment from him and his servants. From the
moment the relation commences, as has been seen, the passenger is in a great measure under the
protection of the carrier, even from the violent conduct of other passengers, or of strangers. … The
carrier’s obligation is to carry the passenger safely and properly, and to treat him respectfully; and, if
he entrusts the performance of this duty to his servants, the law holds him responsible for the manner
in which they execute the trust. The law seems to be now well settled that the carrier is obliged to
protect his passenger from violence and insult from whatsoever source arising. He is not regarded as
an insurer of his passengers’ safety against every possible source of danger, but he is bound to use all
such reasonable precaution as human judgment and foresight are capable of to make his passengers’
journey safe and comfortable. He must not only protect his passengers against the violence and insults
of strangers and co-passengers, but, a fortiori, against the violence and insults of his own servants. If
his duty to the passenger is not performed, if this protection is not furnished, but, on the contrary, the
passenger is assaulted and insulted through the negligence or the willful misconduct of the carrier’s
servant, the carrier is necessarily responsible. And it seems to us it would be a cause of profound
regret if the law were otherwise. The carrier selects his own servants, and can discharge them when
he ple ases, and it is but reasonable that he should be responsible for the manner in which they execute
their trust.”
Thompson on Negligence, § 3186, after stating the above rule, adds: “The carrier is liable absolutely,
as an insurer, for the protection of the passenger against assaults and insults of his own servants,
because he contracts to carry the passenger safely and give him de cent treatment en route. Hence, an
unlawful assault or insult to a passenger by his servant is a violation of his contract by the very person
whom he has employed to carry it out. The intendment of the law is that he contracts absolutely
to protect his passenger against the misconduct of his own servants whom he employs to execute
the contract of carriage. The duty of the carrier to protect the passenger during the transit from the
assaults and insults of his own servants being a duty of an absolute nature, the usual distinctions
which attend the doctrine of respondeat superior cut little figure in the case.”
In Elliott on Railroads, § 2579, treating upon this subject, it is said: “It is not merely a question of
negligence in such cases, nor is it strictly a question depending upon the scope of the servants’
particular employment. It is a question of the absolute duty of a railroad company to its passengers
as long as the relation subsists, and a breach of that duty on its part, whether caused by the willful
act of an employe or not. A carrier is bound to discharge the implie d duty, arising out of its contract
and imposed by law, that its passengers shall be protected from injury by its servants and shall
not be willfully insulted and harmed by them; and, if it commits the discharge of this duty to an
employe, it may well be held to do so at its peril, notwithstanding the e xercise of care on its part
in selecting the servants. Either the company or the passenger must take the risk of infirmities of
temper, maliciousness, and misconduct of the employes whom the company has placed upon the train
and to whom it has committed the discharge of its duty to protect and look after the safety of its
passengers. A passenger has no control over them, and the company alone has the power to select
and remove them. It is therefore but just to make the company, rather than the passengers, take this
risk, and to hold it responsible. This leads to the conclusion that a railroad company is liable for an
injury willfully inflicted upon a passenger by an employe while e ngaged in performing a duty which
the carrier owes to the passenger, or in executing the contract, although the company is guilty of no
82 | Introduction to the Intentional Torts: Protecting Property, Body, and Mind

negligence *522 in selecting them and such act was not strictly within the scope of their employment
or line of their duty, in the se nse that it was done for the carrier or arose out of the performance of
their particular duty.” See also, Traction Co. v. Lane (Tenn.Sup.) 53 S.W. 558.
This rule is strictly observed in this state. In Dillingham v. Russell, 73 Tex. 51, it is said: “The rule,”
refe rring to the principle that the master is not ordinarily liable for an injury resulting from the willful
and malicious acts of his agent not done in the course of his employment, “however, cannot be applie d
in a case in which the maste r by contract, express or implied, is under obligation to protect the injured
person from the servant’s wrongful act as well as his own. Where a duty is thus imposed on the master,
for whose acts, whether of omission or commission, resulting in injury to the person entitled to have
the duty performed, the master must be held as fully responsible and liable to make at least actual
compensation as though the act were his own personal act. In such cases, if the servant does what
the master could not suffe r to be done without violation of the particular duty resting upon him, or
if the servant omits to do that requisite to the full discharge of the master’s incumbent duty, then the
master must be held responsible for the servant’s wrongful or malicious act or omission, for otherwise
it would result that a master might relieve himself from obligation to perform a duty fixed by contract,
or otherwise, by the employment of servants to conduct the busine ss to which the duty attaches. The
master’s obligation cannot thus be avoided, and whether the servant’s act violative of the master’s duty
be willful or malicious is a matter of no importance in de termining the liability and obligation of the
master to make actual compensation to the injured person. It has been steadily he ld to be the duty of
carriers of passengers to protect them, in so far as this can be done by the e xercise of a high degree
of care, from the violence and insults of other passengers and strangers, and to protect them from
the violence and insults of the carrier’s own servants, and the inquiry whether this duty arises from
contract or from the nature of the employment becomes unimportant, except that the duty goes with
the carrier’s contract, however made, whereby the relation of carrier and passenger is established.”
[cc]
The case of Texas & Pacific Ry. Co. v. Jones (Tex.Civ.App.) 39 S.W. 124, is one where the plaintiff’s
wife, who was in defendant’s depot for the purpose of taking passage on one of defendant’s trains,
was insulted by the wife of the ticket agent, but suffered no physical injury in consequence, and the
question presented was whether the husband could recover damages for her mental suffering. It was
held that it was the duty of appellant’s station agent to protect her from insult and abuse from all
pe rsons while she was at its station waiting to become a passenger on its train, and she had the
right to recover for a breach of such duty whether she received physical injuries or not. In the case
of *523 Houston & Texas Central Ry. Co. v. Perkins (Tex.Civ.App.) 52 S.W. 124, where the plaintiff and
his wife were passengers in a Pullman sleeper attached to one of defendant’s trains, and, at night,
the defendant permitted drunken men to enter the coach where plaintiff and his wife had retired,
allowing the drunkards to remain and use profane and inde cent language, which caused the wife
mental anguish and loss of rest, this court held, in an opinion by Justice Fly, that the husband was
entitled to recover damages though his wife sustaine d or suffered no physical injuries. See, also, M.,
K. & T. Ry. Co. v. Ball (Tex.Civ.App.) 61 S.W. 327. The case of I. & G.N. Ry. v. Henderson (Tex.Civ.App.)
82 S.W. 1065, is one where a negro passenger, with the knowledge of the conductor, was vilified and
made to dance for the amusement of the passengers by several drunken rowdies, who had entered the
train; and, though the e vidence faile d to show that he suffered any physical injuries, a verdict against
Introduction to the Intentional Torts: Protecting Property, Body, and Mind | 83

the railway company for $1,000 damages on account of his humiliation, mortification, and fright was
affirmed on appeal. See, also, Quinn v. L. & N. Ry. Co. (Ky.) 32 S.W. 742.
We have quote d the foregoing elementary principles and cited cases falling under them for the
purpose of demonstrating that the liability of a common carrier for insults by its servants causing
humiliation, a sense of disgrace, mental anguish, or fear in a passenger is independent of physical
injury or bodily harm; and that such liability does not depend upon the negligence of the master in
employing the servant, or the scope of his authority, if the insult is given while employed about his
master’s business.
It being established by the de cisions of this state that mental suffering is an element of damages,
where it results from a breach of the carrier’s contract or duty, though no physical injury may have
been sustained, and, as the e vidence in this case shows plaintiff’s wife suffered mental anguish from
the consequence of such breach, which was also a tort, it was for the jury to dete rmine the quantum of
damage. In such a case the law does not undertake to, nor can it, exactly measure his damages, but it
authorizes the jury to consider the injured feelings of the party, the indignity endured, the humiliation,
wounded pride, mental suffering, and the like, and to allow such sum as it may determine is right.
When this is done, unless the verdict is palpably wrong, after it has been approved by the trial court,
it is not the province of an appellate tribunal to disturb it.
What could be more humiliating to a frail, delicate, sensitive woman, with a babe at her breast and
her other little ones around her, than to be pounced upon, vilified, and traduced by a negro servant in
a railway depot, where her relation as passenger to its owner entitles her to be treated with respect
and kindness? Is it any wonder to those who can contemplate the e ffect of such an outrage that the
poor woman for months afterwards, as she testified, could not close her eyes without that angry,
threatening negro arising before her and murdering sleep? In G., C. & S.F. Ry. Co. v. Trott, 86 Tex. 412,
the Supreme Court says: “That a physical personal injury may be produced through emotion of the
mind there can be no doubt. The fact that it is more difficult to produce such an injury through the
operation of the mind *524 than by direct physical means affords no sufficient grounds for refusing
compensation in an action at law, where the injury is intentionally or negligently inflicted. It may be
more difficult to prove the connection between the alleged cause of injury, but if it be proved, and the
injury be the proximate result of the cause, we cannot say that a recovery should not be had.” It was for
the jury to say from the e vidence whe ther plaintiff’s wife, in consequence of the outrage inflicted upon
her by appellant’s servant, suffered from nervous prostration and sickness, and there being evidence
to support its finding, we de emed it our duty to make our conclusions of fact conform thereto, and,
in view of the e vidence and the principle s of law above enunciated, to conclude that the verdict is not
excessive. This disposes of the first and second assignments of error.
[Editor’s note: The third assignment of error is omitted here.]
The fourth assignment complains that the court erred in not sustaining defendant’s objection to that
part of the answer of Mrs. Luther *525 to the sixth interrogatory which is as follows: “The little girl
May was very much frightened, and said ‘Mamma, let’s get out of here’”—because such part of the
answer was immaterial, irrelevant, and hearsay. *** However, we have no doubt that this part of the

84 | Introduction to the Intentional Torts: Protecting Property, Body, and Mind

9

answer was admissible in e vidence as part of the res gestae, and for that reason distinguishable from
hearsay. For the appe arance and e xclamation of the child was when the negro was standing over and
abusing her mother, and were indicative of the woman’s action and language, and tended to show her
violent and outrageous conduct toward plaintiff’s wife. [cc]
The testimony complained of in the fifth, sixth, and seventh assignments was admissible in e vidence
unde r the rule that, where the bodily and mental feelings of an individual are material to be proved,
the usual e xpressions of such feelings, made at the time in que stion, are original evidence. If they are
the natural language of the affection, whether of body or mind, they furnish satisfactory evidence,
and often the only proof of its existence. And whether they were real or feigned is for the jury to
determine. [cc] And a witness may testify that another person seemed to be sick, suffering, nervous,
or in good or bad health. [cc]
While the rule , e xpressed in the court’s charge, that “railway companies are not insurers of the safety
and comfort of their passengers, but are required to exercise that high degree of care that very
cautious and prudent persons would have e xercised unde r the same or similar circumstances, and a
failure to do so is negligence,” may not be strictly applicable to a case of this character, its being given
in the charge [to the jury] could not have possibly prejudiced the defendant, since in a case like this
the common carrier is absolutely liable for injuries unlawfully and wrongfully inflicted by his servant
on a passenger.
There is no error in the judgment, and it is affirmed.
Note 1. What is the tortious harm here?
Note 2. What do you note about how the court describes the dynamic between the two women?
Note 3. What is the purpose of making an employer vicariously liable for the kind of dynamic described
here? What effect will a ruling like this one have in the workplace?
Note 4. The principal case mentions a prior case, International & G.N.R. Co. v. Henderson, in which
“a negro passenger, with the knowledge of the conductor, was vilified and made to dance for the
amusement of the passengers by several drunken rowdies, who had entered the train.” The paragraphs
below, excerpted from International & G.N.R. Co, provide further details on the e xperience of Mr.
Henderson, the African-American plaintiff targeted by drunken passengers.
International & G.N.R. Co. v. Henderson, Court of Civil Appeals of Texas (1904)
(82 S.W. 1065)
[***] [A]ppellee was a passenger on one of appellant’s passenger trains from San Antonio to Austin,
and further alleged: That during the time that said passenger train was on its way to Austin from San
Antonio, and while plaintiff was on the train as a passenger, seated in the car set apart for the use of
colored passengers (plaintiff being a colored man), the said car was invaded by several intoxicated or
partially intoxicated white men, to plaintiff unknown, who made use of said car set apart for the use

9. Editor’s note: “res gestae” means the things or circumstances relating to case at hand.
Introduction to the Intentional Torts: Protecting Property, Body, and Mind | 85

of colored passengers as a smoking car; said unknown white men were rude, boisterous, vulgar, and
profane, cursing and swearing in the presence of plaintiff and several colored women, among whom
was the wife of the plaintiff. The plaintiff remonstrated with the white men who had invaded the car
set apart to the colored passengers, and was then abused, cursed, and vilified in the most vulgar and
indecent language, and was marched through the train at the point of pistols held in the hands of the
white men, and compelled to get off said train at the first station through which the plaintiff passed.
That he caught the last car on the train after being compelled to get off, and once more se ated himself
as a passenger on the passenger train of defendant, but was again seen by the crowd of white men, as
hereinbefore alleged, and was again cursed and vilified by said crowd of men, and compelled to march
through the train at the point of pistols, and made to dance for the amusement of fellow passengers,
searched, and again compelled to get off the train at the first station through which the passenger
train passed; and then the plaintiff appealed to the conductor of said train for protection, informing
the conductor that he was a passenger, and entitled to protection as a passenger. The conductor
informed the plaintiff that he could do nothing for him, and for him (the plaintiff) to get on the blind
baggage car. That he then again got upon the train, but the same crowd of white men compelled him,
at the point of pistols, to again walk to and fro through the train, and when the train reached the
station of Buda the plaintiff was compelled to get off and leave said train at the point of pistols and
in fear of his life, and was not allowed by said crowd of white men to again get upon the train. That
the plaintiff appealed to the conductor and the other trainmen in control of the train, but he was told
that they could do nothing for him. That, after being compelled to get off the train at Buda, he walked
to Austin, a distance of 12 miles, arriving next morning, as it was night when plaintiff was put off and
required to leave the train at Buda. The pe tition alleges that the facts as stated were known to the
conductor and the servants in charge of the train. And the pe tition concludes with the statement that
he has be en greatly damaged, in being placed in fear of his life and great bodily harm, and that he
suffered great anguish in body and mind on account of the mistreatment as herein alleged, and sues
for the sum of $5,000. There is abundant evidence in the record sustaining these averments.
[***] The e vidence in the record, and the case as made by the ple adings, is not one wholly of mental
anguish, but it shows an unjustifiable assault made by drunken passengers upon the person of the
appellee at a time and under circumstances when he should have be en afforded protection by the
conductor and the servants in charge of the train. They knew and were informed of the outrageous
and unjustifiable assault that was being committed, and there is no palliation or excuse for the
conduct of the railway company in not resorting to some me ans to afford protection to the plaintiff
from the premeditated, unjustifiable, and outrageous assault that was being committed upon him,
the progress of which, as the e vidence shows, continued for some time, within the knowledge of
the conductor. On the points of law raised in the assignments noticed, the authorities in this state
are cle arly against the contention of the appellant. Texas & Pacific Railway Co. v. Armstrong, 93 Tex.
34; Missouri Pacific Railway Co. v. Kaiser, 82 Tex. 144; M., K. & T. Ry. Co. v. Tarwater (Tex.Civ.App.) 75
S.W. 937; International & Great Northern Railroad Co. v. Anchondi (Tex.Civ.App.) 68 S.W. 744.
The fifth assignment of error complains that the verdict of the jury is excessive, outrageous, and
unconscionable, and that the court erred in overruling defendant’s motion for new trial, because
the damages awarded to the plaintiff are out of all proportion to the inconvenience and humiliation
alleged to have be en suffered by him. In view of the e vidence in the record, it is unnecessary to discuss
86 | Introduction to the Intentional Torts: Protecting Property, Body, and Mind

the question raised by this assignment. The plaintiff was clearly entitled to the amount recovered
[$1,000], if not more.
Note 5. Having read the account of Mr. Henderson’s experience, consider how it compares with the
experience of Mrs. Luther in the waiting room, recalling that both incidents were alleged to have
resulted in emotional distress. What do you observe about how the court in Gulf v. Luther cites to
this case, International & G.N.R. Co. v. Henderson? What does it suggest about a system built on stare
decisis?
Professor Kim Lane Scheppele describes how a legal system ceases to feel legitimate when it
discredits or misrepresents those whom it purposes to represent and regulate: “Those whose storie s
are believed have the power to create fact; those whose storie s are not believed live in a legally
sanctioned ‘reality’ that does not match their perceptions. …How are pe ople to think about the law
when their stories, the ones they have lived and believed, are rejected by courts, only to be replaced
by other versions with different legal results? …[T]here are few things more disempowering in law
than having one’s own self-believed story rejected, when rules of law (however fair in the abstract)
are applie d to facts that are not one ’s own, when legal judgments proceed from a description of one’s
own world that one does not recognize…” Foreword: Telling Stories, 87 Mich. L. Rev. 2073, 2079–80
(1989) What should courts do to guard against citation practices like those illustrated in the Luther
and Henderson cases?

Check Your Understanding – Set 10

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=31#h5p-20

Ruiz v. Bertolotti, Supreme Court, Nassau County (1962)
(NY 37 Misc.2d 1067)
On this motion to dismiss the complaint for legal insufficiency pursuant to Rule 106 subdivision 4,
Rules of Civil Practice, much of defendant’s argument is directed to the plausibility of the plaintiffs’
story, and whether the acts complained of ever occurred since the complaint is based only upon
information and belief. We are not now, however, concerned with the question of proof since on a
motion of this type the allegations must be deemed true.
Introduction to the Intentional Torts: Protecting Property, Body, and Mind | 87

In sum the complaint states that the plaintiffs, who are Puerto Ricans, contracted to purchase a
house in a residential section of Massapequa from one Farber, a builder; that the defendant learned
of this and he, acting in concert with others, personally called on Farber and expressed anger at
‘colored persons’ moving into the neighborhood, and threatened bodily harm to him, to plaintiffs and
to plaintiffs’ childre n, if the sale were consummated; that these threats were made with malice and
for the purpose of communication to plaintiffs, in order to frighten them into agreeing to rescind the
contract of sale; that these threats were communicated to plaintiffs by Farber and that plaintiffs were
put in fear of their personal safety and that of their children as a result of which they entered into an
agreement rescinding the contract of sale. It is further alleged that, as a result of these threats, both
plaintiffs suffered distress, humiliation and emotional shock and were rendered sick and nervous, and
that in addition plaintiff Manuel Ruiz suffered pecuniary damage in that he had to se arch for another
dwelling and absent himself from his business.
Much of the discussion in the moving brief, in the court’s view, is be side the point. This does not
purport to be an action under the new anti-discrimination laws, nor in defamation, nor for assault, so
there is no point in showing its deficiencies in this regard. [***]
This is an action for a wilful and malicious tort, the very purpose of which was to so frighten and
distress the plaintiffs that they would surrender their legal right to buy a house where the y pleased.
These were not mere idle words of disapproval but a specific threat of bodily harm. The ultimate
purpose of keeping ‘colored people’ out of the neighborhood could not be accomplished unless the
immediate objective of putting them in fear for their safety first succeeded.
In principle this case is not too different from Halio v. Lurie, 15 A.D.2d 62, 222 N.Y.S.2d 759, where
a malicious, sarcastic letter, taunting the *1069 plaintiff with her unsuccessful efforts to marry the
defendant was held to be actionable without a showing of special damage. Battalla v. State, 10 N.Y.2d
237, is analogous also. There the Court of Appeals overruled the long established rule of Mitchell v.
Rochester Ry. Co., 151 N.Y. 107, that there could be no recovery for negligently causing fright, distress
and physical damage, unless there had be en an impact and allowed a complaint to stand although no
physical contact was involved.
Deliberate and male volent conduct, albeit confined to words, is at least as serious a matter, requiring
the protection of the law to even a greater degree. (Scheman v. Schlein, 35 Misc.2d 581.)
The fact that the threat was uttered to an intermediary for communication to plaintiffs does not, in
any way, detract from its viciousness and illegality. An ‘organizer’ who goes into a barber shop and tells
an employee to tell the employer to raise the price of haircuts or his shop will be dynamited, would
get short shrift with the defense that he did not speak to the employer personally.
For these reasons I believe that defendant must come forward and stand on his position that the
episode did not take place and not that he is not liable e ven if it did happen, which is his position on
this motion.
Motion denied.
Note 1. The court attempts to sort the defendant’s conduct into one of tort law’s existing categories:
88 | Introduction to the Intentional Torts: Protecting Property, Body, and Mind

“This does not purport to be an action under the new anti-discrimination laws, nor in defamation, nor
for assault, so there is no point in showing its deficiencies in this regard.” What do you make of this
effort, and how does it square with the outcome in this case?
Note 2. Having now had a brief introduction to trespass, battery, and assault—three of the core
intentional torts—what do you observe about the way they were applie d in the cases you read, whom
they served or disserved, and how they differed from negligence law?

Check your Understanding – Set 11

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=31#h5p-21

Introduction to the Intentional Torts: Protecting Property, Body, and Mind | 89

6. Intentional Torts vs Negligence (Socratic
Script)
Questions and Areas of Focus for the Readings
• Can you articulate the significance of a “general verdict” and its effect here?
• What is the role of the jury and jury instructions, in this case?
• Why does it matter to distinguish between battery and negligence?
• What key facts in this case did the court focus on, to distinguish between the applicability of the
two regimes (the regimes of battery and negligence, that is)?

Cobbs v. Grant, Supreme Court of California, en banc, (1972)
(8 Cal.3d 229) MOSK, Justice.
This medical malpractice case involves two issues: first, whether there was sufficient evidence of
negligence in the pe rforming of surgery to sustain a jury verdict for plaintiff; second, whether, under
plaintiff’s alternative the ory, the instructions to the jury adequately set forth the nature of a medical
doctor’s duty to obtain the informed consent of a patient before undertaking treatment. We conclude
there was insufficient evidence to support the jury’s verdict under the theory that defendant was
negligent during the operation. Since there was a general verdict and we are unable to ascertain upon
which of the two concepts the jury relied, we must reverse the judgment and remand for a new trial.
To assist the trial court upon remand we analyze the doctor’s duty to obtain the patient’s informed
consent and suggest principles for guidance in drafting new instructions on this question.
Plaintiff was admitted to the hospital in August 1964 for treatment of a duodenal ulcer. He was given a
series of tests to ascertain the se verity of his condition and, through administered medication to ease
his discomfort, he continued to complain of lower abdominal pain and nausea. His family physician,
Dr. Jerome Sands, concluding that surgery was indicated, discussed prospective surgery with plaintiff
and advised him in general terms of the risks of undergoing a general anesthetic. Dr. Sands called in
defendant, Dr. Dudley F. P. Grant, a surgeon, who after examining plaintiff, agreed with Dr. Sands that
plaintiff had an intractable peptic duodenal ulcer and that surgery was indicated. Although Dr. Grant
explained the nature of the operation to plaintiff, he did not discuss any of the inherent risks of the
surgery.
*235 A two-hour operation was performed the ne xt day, in the course of which the presence of a small
ulcer was confirmed. Following the surgery the ulcer disappeared. Plaintiff’s recovery appeared to be
uneventful, and he was permitted to go home eight days later. However, the day after he returned
home, plaintiff began to experience intense pain in his abdomen. He imme diately called Dr. Sands
90 | Intentional Torts vs Negligence (Socratic Script)

who advised him to return to the hospital. Two hours after his readmission plaintiff went into shock
and emergency surgery was performed. It was discovered plaintiff was bleeding internally as a result
of a severed artery at the hilum of his spleen. Because of the seriousness of the hemorrhaging and
since the sple en of an adult may be removed without adverse effects, defendant decided to remove
the sple en. Injuries to the spleen that compel a subsequent operation are a risk inherent in the type of
surgery performed on plaintiff and occur in approximately 5 percent of such operations.
After removal of his spleen, plaintiff recuperated for two weeks in the hospital. A month after
discharge he was readmitted because of sharp pains in his stomach. X-rays disclosed plaintiff was
developing a gastric ulcer. The e volution of a new ulcer is another risk inherent in surgery performed
to relieve a duodenal ulcer. Dr. Sands initially decided to attempt to treat this nascent gastric ulcer
with antacids and a strict diet. However, some four months later plaintiff was again hospitalized
when the gastric ulcer continued to deteriorate and he e xperienced severe pain. When plaintiff
began to vomit blood the defendant and Dr. Sands concluded that a third operation was indicated: a
gastrectomy with removal of 50 percent of plaintiff’s stomach to reduce its acid-producing capacity.
Some time after the surgery, plaintiff was discharged, but subsequently had to be hospitalized yet
again when he began to bleed internally due to the premature absorption of a suture, another inherent
risk of surgery. After plaintiff was hospitalized, the ble eding began to abate and a week later he was
finally discharged.
Plaintiff brought this malpractice suit against his surgeon, Dr. Grant. The action was consolidated for
trial with a similar action against the hospital. The jury returned a general verdict against the hospital
in the amount of $45,000. This judgment has been satisfied. The jury also returned a general verdict
against defendant Grant in the amount of $23,800. He appeals.
The jury could have found for plaintiff either by determining that defendant negligently performed the
operation, or on the the ory that defendant’s failure to disclose the inhe rent risks of the initial surgery
vitiated plaintiff’s consent to operate. Defendant attacks both possible grounds of *236 the verdict.
He contends, first, there was insufficient evidence to sustain a verdict of negligence, and, second, the
court committed prejudicial error in its instruction to the jury on the issue of informed consent.
I
Defendant’s attack on the sufficiency of the e vidence relates to the state of the me dical testimony.
Three e xperts testified at the trial: defendant, Dr. Sands, and defendant’s expert, Dr. Yates. No expert
witness was produced by plaintiff. The three e xperts were consistent in the opinion that the de cision
to operate as well as the actual procedure e videnced due care. Thus defendant insists that if experts
unanimously opine that the defendant exercised due care, the jury may not substitute its judgment
and find negligence. [cc]
Plaintiff contends the jury could reach a conclusion contrary to that of the e xperts because the
decision to operate on his duodenal ulcer comes under the recognized exception to the need for
medical testimony: the facts present a medical question resolvable by common knowledge. [cc] Where
a shoulder is injured in an appendectomy (Ybarra v. Spangard (1944) 25 Cal.2d 486), or a clamp is left
in the abdomen (Leonard v. Watsonville Community Hosp. (1956) 47 Cal.2d 509), expert testimony is
Intentional Torts vs Negligence (Socratic Script) | 91

not required since the jury is capable of appreciating and evaluating the significance of such events.
However, when a doctor relates the facts he has relied upon in support of his decision to operate, and
where the facts are not commonly susceptible of comprehension by a lay juror, medical expert opinion
is necessary to enable the trier of fact to dete rmine if the circumstances indicated a need for surgery.
The record before us requires this case to be governed by the general rule. An X-ray examination
of plaintiffs’ stomach disclosed ‘There

is e xtreme irritability of the duodenal bulb within which

on two films is a faint collection of barium (swallowed by plaintiff for the purposes of this test)
consistent with a very tiny active duodenal ulcer.’ Since it was a ‘very tiny’ ulcer, and since conversely,
the ulcer was ‘active’ and had produced ‘extreme irritability,’ only an expert would be capable of
understanding whether surgery was immediately necessary for plaintiff’s wellbeing. Similarly *237
there

was uncontradicted testimony that although plaintiff had ceased to e
xperience

pain

rhythmically, continuous pain indicated the ulcer was penetrating the wall of the duodenum. If all
five layers of the duodenum are penetrated a patient can bleed profusely and emergency surgery is
essential to save his life. Again only an expert can appreciate the significance of the constant pain
and whether surgery was indicated therefor. Finally there was evidence plaintiff’s stools were dark
and tarry. While the lay mind is unable to draw any conclusion from such evidence, to a doctor this
is additional confirmation of a penetrating ulcer. Under such circumstances the common knowledge
exception to the need for expert medical testimony is not applicable.
A fortiori, plaintiff’s theory of negligence in the pe rformance of the surgery is not sustainable under
the common knowledge e xception when, under these circumstances, there is uncontradicted expert
testimony the operation had been performed with due care. Even with the e xercise of due care
the sple en may be injured during operations similar to that performed on plaintiff approximately 5
percent of the time , due to the ne ed to mechanically retract the sple en to obtain access to the site
of the operation. ‘The fact that a particular injury suffered by a patient as the result of an operation
is something that rarely occurs does not in itself prove that the injury was probably caused by the
negligence of those in charge of the operation.’ (Siverson v. Weber (1962) 57 Cal.2d 834, 839.)
In any event, plaintiff contends, defendant made statements from which the jury could conclude
defendant had admitted negligence. Defendant is a medical expert; if he in fact made inculpatory
declarations of negligence, such admissions could be de emed the e xpert testimony necessary to
sustain the verdict. However, the e vidence pointed out by plaintiff in support of this theory does
not constitute an admission of negligence. Plaintiff first emphasized testimony by defendant that
surgery is not necessary for most ulcers unless there are complications. Plaintiff argues that from
such testimony, in light of plaintiff’s medical history, the jury could conclude there was no indication
of a need for surgery. This is merely a restatement of the common knowledge argument which we
have rejected above. Defendant’s statement that surgery is not usually warranted is not an admission
of a negligent decision to operate whe n all the me dical experts testified that in plaintiff’s case surgery
was indicated.
Plaintiff also urges that although defendant testified he visually inspected the sple en before suturing,
the jury could infer from the subse quent hemorrhaging *238 that his inspection was not made with
due care. The bleeding was attributable to a small te ar at the hilum of the sple en. Defendant and his
expert witnesses gave uncontradicted testimony that injuries not apparent during an operation may
92 | Intentional Torts vs Negligence (Socratic Script)

subsequently become manifest. In light of this testimony and the additional uncontradicted testimony
that the surgery was performed with due care, it would have be en improper speculation for the jury to
infer the injury should have be en apparent to a careful surgeon. (Dobson v. Industrial Acc. Com. (1952)
114 Cal.App.2d 782, 786—787.)
Finally, plaintiff relies on his own testimony that defendant said to plaintiff, ‘He (i.e., defendant)
blamed himself for me being back in there (the hospital for a second time).’ Defendant denied having
made such a remark. However, even if the jury had chosen to believe plaintiff, defendant’s statement
signifies compassion, or at most, a feeling of remorse, for plaintiff’s ordeal. Since a me dical doctor is
not an insurer of result, such an equivocal admission does not constitute a concession that he lacked
or failed to use the reasonable degree of learning and skill ordinarily possessed by other members of
the profession in good standing in the community, or that he failed to exercise due care. [cc]
We are convinced there is not substantial evidence to support a jury verdict on the issue of defendant’s
liability on the the ory that he was negligent either when he decided to operate or in performing
the surgery. Under article VI, se ction 13, of the California Constitution, we must e xamine the record
to dete rmine if the giving of instructions on this issue may have prejudiced the jury and caused a
miscarriage of justice. The test we apply is whether it is reasonably probable a result more favorable
to the appe aling party would have be en reached in the absence of the error. (People v. Watson
(1956) 46 Cal.2d 818, 836.) Inasmuch as there was a general verdict, we cannot know whether the
jury found defendant liable on the the ory his decision to undertake, or the performance of, the
operation was negligent, or whether it found him liable under the alternative the ory: failure to obtain
plaintiff’s informed consent for surgery. It is clear from the record that both concepts were vigorously
presented to the jury. Since it is impossible to de termine on which theory the jury verdict rested, we
conclude it is reasonably probable there has be en a miscarriage of justice. We therefore reverse the
judgment.
*239 II
Since the que stion of informed consent is likely to arise on retrial, we address ourselves to that issue.
(Code Civ.Proc., s 43.) In giving its instruction the trial court relied upon Berkey v. Anderson (1969)
1 Cal.App.3d 790, 803, a case in which it was held that if the defendant failed to make a sufficient
disclosure of the risks inherent in the operation, he was guilty of a ‘technical battery’ [cc] While a
battery instruction may have be en warranted under the facts alleged in Berkey, in the case before us
the instruction should have been framed in terms of negligence.
Where a doctor obtains consent of the patient to perform one type of treatment and subsequently
performs a substantially different treatment for which consent was not obtained, there is a cle ar case
of battery. (Berkey v. Anderson (1969) supra, 1 Cal.App.2d 790 (allegation of consent to permit doctor
to perform a procedure no more complicated than the electromyograms plaintiff had previously
undergone, when the actual procedure was a myelogram involving a spinal puncture); Bang v. Charles
T. Miller Hosp. (1958) 251 Minn. 427 (plaintiff consented to a prostate resection when uninformed that
this procedure involved tying off his sperm ducts); Corn v. French (1955) 71 Nev. 280 (patient consented
to exploratory surgery; doctor performed a mastectomy); Zoterell v. Repp (1915) 187 Mich. 319 (consent
given for a hernia operation during which doctor also removed both ovaries).
Intentional Torts vs Negligence (Socratic Script) | 93

However, when an undisclosed potential complication results, the occurrence of which was not an
integral part of the treatment procedure but merely a known risk, the courts are divide d on the
issue of whether this should be deemed to be a battery or negligence. (Gray v. Grunnagle (1966)
423 Pa. 144 (failure to warn a patient a spinal operation involved an inherent risk of permanent
paralysis; battery); Belcher v. Carter (1967) 13 Ohio App.2d 113 (failure to warn of danger of radiation
burns; battery); Nolan v. Kechijian (1949) 75 R.I. 165 (operation to strengthen ligaments of spleen when
spleen was removed; trespass to the body and negligence); [c] Mitchell v. Robinson (Mo.1960) 334
S.W.2d 11 (vertebrae broken during insulin shock treatment; negligence).) California authorities have
favored a negligence the ory. *240 (Carmichael v. Reitz (1971) 17 Cal.App.3d 958 (pulmonary embolism
caused by adverse reaction to drug; negligence); Dunlap v. Marine (1966) 242 Cal.App.2d 162 (cardiac
arrest allegedly caused by administration of anesthetic; negligence); Tangora v. Matanky (1964) 231
Cal.App.2d 468 (anaphylactic shock as a result of intramuscular penicillin shot; negligence); Salgo v.
Leland Stanford, etc., Bd. of Trustees (1957) 154 Cal.App.2d 560 (paralysis of lower extremities after
aortographic examination; negligence).)
Dean Prosser surveyed the de cisions in this area and concluded, ‘The e arliest cases treated this as
a matter of vitiating the consent, so that there was liability for battery. Beginning with a decision in
Kansas in 1960 (Natanson v. Kline (1960) [c], 187 Kan. 186), it began to be recognized that this was really
a matter of the standard of professional conduct . . .. (T)he prevailing view now is that the action . . . is
in reality one for negligence in failing to conform to the proper standard . . ..’ [cc]
Although this is a close question, either prong of which is supportable by authority, the trend appears
to be towards categorizing failure to obtain informed consent as negligence. That this result now
appears with growing frequency is of more than academic interest; it reflects an appreciation of the
several significant consequences of favoring negligence over a battery theory. As will be discusse d
Infra, most jurisdictions have permitted a doctor in an informed consent action to interpose a defense
that the disclosure he omitted to make was not required within his medical community. However,
expert opinion as to community standard is not required in a battery count, in which the patient must
merely prove failure to give informed consent and a mere touching absent consent. Moreover a doctor
could be he ld liable for punitive damages under a battery count, and if held liable for the intentional
tort of battery he might not be covered by his malpractice insurance. (Comment, Informed Consent
in Medical Malpractice (1967) 55 Cal.L.Rev. 1396.) Additionally, in some jurisdictions the patient has a
longer statute of limitations if he sues in negligence.
We agree with the majority trend. The battery theory should be reserved for those circumstances
when a doctor performs an operation to which the patient has not consented. When the patient
gives permission to perform one type of treatment and the doctor performs another, the requisite
element of deliberate intent to deviate from the consent given is present. However, when the patient
consents to certain treatment and the doctor performs that treatment but an undisclosed inherent
complication with a low probability occurs, no intentional deviation from the consent *241 given
appears; rather, the doctor in obtaining consent may have faile d to meet his due care duty to disclose
pertinent information. In that situation the action should be pleaded in negligence.
The facts of this case constitute a classic illustration of an action that sounds in negligence. Defendant
performed the identical operation to which plaintiff had consented. The sple en injury, development
94 | Intentional Torts vs Negligence (Socratic Script)

of the gastric ulcer, gastrectomy and internal bleeding as a result of the premature absorption of a
suture, were all links in a chain of low probability events inherent in the initial operation.
III
Since this is an appropriate case for the application of a negligence the ory, it remains for us to
dete rmine if the standard of care described in the jury instruction on this subject properly delineates
defendant’s duty to inform plaintiff of the inherent risks of the surgery. In pertinent part, the court
gave the following instruction: ‘A physician’s duty to disclose is not governed by the standard practice
in the community; rather it is a duty imposed by law. A physician violates his duty to his patient
and subjects himself to liability if he withholds any facts which are ne cessary to form the basis of an
intelligent consent by the patient to the proposed treatment.’
Defendant raises two objections to the foregoing instruction. First, he points out that the majority of
the California cases have me asured the duty to disclose not in terms of an absolute, but as a duty
to reveal such information as would be disclose d by a doctor in good standing within the me dical
community. [cc] One commentator has imperiously declared that ‘good medical practice is good law.’
(Hagman, The Medical Patient’s Right to Know (1970) 17 U.C.L.A. L.Rev. 758, 764.) Moreover, with one
state and one federal exception every jurisdiction that has considered this question has adopted
the community standard as the applicable test. [fn] Defendant’s second contention is that this near
unanimity reflects strong policy reasons for vesting in the medical community the unquestioned *242
discretion to dete rmine if the withholding of information by a doctor from his patient is justified at
the time the patient weighs the risks of the treatment against the risks of refusing treatment.
The thesis that medical doctors are invested with discretion to withhold information from their
patients has been frequently ventilated in both legal and medical literature. (See, e.g., Salgo v. Leland
Stanford, etc., Bd. of Trustees (1957) supra, 154 Cal.App.2d 560, 578; Mitchell v. Robinson (Mo.1960)
supra, 334 S.W.2d 11 (even though patient was upset, agitated, depressed, crying, had marital problems
and had been drinking, the court found that since no emergency existed and he was legally competent
he should have be en advised of the risks of shock therapy) […] Despite what defendant characterizes
as the prevailing rule, it has never been unequivocally adopted by an authoritative source. Therefore
we probe ane w into the rationale which purportedly justifies, in accordance with medical rather than
legal standards, the withholding of information from a patient.
Preliminarily we employ several postulates. The first is that patients are generally persons unlearned
in the me dical sciences and therefore, except in rare cases, courts may safely assume the knowledge
of patient and physician are not in parity. The se cond is that a person of adult years and in sound mind
has the right, in the e xercise of control over his own body, to determine whether or not to submit to
lawful medical treatment. The third is that the patient’s consent to treatment, to be effective, must
be an informed consent. And the fourth is that the patient, being unlearned in medical sciences,
has an abject dependence upon and trust in his physician for the information upon which he relies
during the de cisional process, thus raising an obligation in the physician that transcends arms-length
transactions.
From the foregoing axiomatic ingredients emerges a ne
cessity, and a resultant requirement, for
Intentional Torts vs Negligence (Socratic Script) | 95

divulgence by the physician to his patient of all information relevant to a meaningful decisional
process. In many instances, to the physician, whose training and experience enable a self-satisfying
evaluation, the particular treatment which should be undertaken may seem evident, but it is the
prerogative of the patient, not the physician, to determine for himself the direction in which he
believes his interests lie. *243 To e nable the patient to chart his course knowledgeably, reasonable
familiarity with the therapeutic alternatives and their hazards becomes essential.
Therefore, we hold, as an integral part of the physician’s overall obligation to the patient there is a
duty of reasonable disclosure of the available choices with respect to proposed therapy and of the
dangers inherently and potentially involved in each.
A concomitant issue is the yardstick to be applie d in determining reasonableness of disclosure. This
defendant and the majority of courts have related the duty to the custom of physicians practicing in
the community. [cc] The majority rule is ne edlessly overbroad. Even if there can be said to be a me dical
community standard as to the disclosure requirement for any prescribed treatment, it appears so
nebulous that doctors become, in effect, vested with virtual absolute discretion. (See Note, Physicians
and Surgeons (1962) 75 Harv.L.Rev. 1445; Waltz and Scheuneman, Informed Consent to Therapy (1970)
64 Nw.U.L.Rev. 628.) The court in Canterbury v. Spence, supra, 464 F.2d 772, 784, bluntly observed:
‘Nor can we ignore the fact that to bind the disclosure obligation to medical usage is to arrogate the
decision on revelation to the physician alone. Respect for the patient’s right of self-determination on
particular therapy demands a standard set by law for physicians rather than one which physicians may
or may not impose upon themselves.’ Unlimited discretion in the physician is irreconcilable with the
basic right of the patient to make the ultimate informed decision regarding the course of treatment to
which he knowledgeably consents to be subjected.
A medical doctor, being the expert, appreciates the risks inherent in the procedure he is prescribing,
the risks of a decision not to undergo the treatment, and the probability of a successful outcome
of the treatment. But once this information has been disclosed, that aspect of the doctor’s expert
function has been performed. The weighing of the se risks against the individual subje ctive fears and
hopes of the patient is not an expert skill. Such evaluation and decision is a nonmedical judgment
reserved to the patient alone. A patient should be denied the opportunity to weigh the risks only
where it is evident he cannot evaluate the data, as for example, where there is an emergency or the
patient is a child or incompetent. For this reason the law provides that in an emergency consent is
implied *244 [cc] and if the patient is a minor or incompetent, the authority to consent is transferred
to the patient’s legal guardian or closest available relative [cc]. In all cases other than the foregoing,
the de cision whether or not to undertake treatment is vested in the party most directly affected: the
patient.
The scope of the disclosure required of physicians defies simple definition. Some courts have spoken
of ‘full disclosure’ [cc] and others refer to “full and complete” disclosure

[cc] but such facile

expressions obscure common practicalities. Two qualifications to a requirement of ‘full disclosure’
need little

e xplication. First, the

patient’s interest in information does not extend to a lengthy

polysyllabic discourse on all possible complications. A mini-course in me dical science is not required;
the patient is concerned with the risk of death or bodily harm, and problems of recuperation. Second,
there is no physician’s duty to discuss the relatively minor risks inherent in common procedures,
96 | Intentional Torts vs Negligence (Socratic Script)

when it is common knowledge that such risks inherent in the procedure are of very low incidence.

1

When there is a common procedure a doctor must, of course, make such inquiries as are required
to determine if for the particular patient the treatment under consideration is contraindicated—for
example, to dete rmine if the patient has had adverse reactions to antibiotics; but no warning beyond
such inquiries is required as to the remote possibility of death or serious bodily harm.
However, when there is a more complicated procedure, as the surgery in the case before us, the jury
should be instructed that when a given procedure inherently involves a known risk of death or serious
bodily harm, a medical doctor has a duty to disclose to his patient the potential of death or serious
harm, and to explain in lay terms the complications that might possibly occur. Beyond the foregoing
minimal disclosure, a doctor must also reveal to his patient such additional information as *245 a
skilled practitioner of good standing would provide under similar circumstances.
In sum, the patient’s right of self-decision is the me asure of the physician’s duty to reveal. That right
can be effectively exercised only if the patient possesses adequate information to enable an intelligent
choice. The scope of the physician’s communications to the patient, then, must be measured by the
patient’s need, and that need is whatever information is material to the decision. Thus the test for
determining whether a potential peril must be divulged is its materiality to the patient’s decision.
(Canterbury v. Spence, supra, 464 F.2d 772, 786.)
We point out, for guidance on retrial, an additional problem which suggests itself. There must be a
causal relationship between the physician’s failure to inform and the injury to the plaintiff. Such causal
connection arises only if it is established that had revelation been made consent to treatment would
not have be en given. Here the record discloses no testimony that had plaintiff been informed of the
risks of surgery he would not have consented to the operation. [cc]
The patient-plaintiff may testify on this subject but the issue e xtends beyond his credibility. Since at
the time of trial the uncommunicated hazard has materialized, it would be surprising if the patientplaintiff did not claim that had he be en informed of the dangers he would have de clined treatment.
Subjectively he may believe so, with the 20/20 vision of hindsight, but we doubt that justice will be
served by placing the physician in jeopardy of the patient’s bitterness and disillusionment. Thus an
objective test is preferable: i.e., what would a prudent person in the patient’s position have de cided if
adequately informed of all significant perils. (Canterbury v. Spence, supra, 464 F.2d 772, 787.)
The burden of going forward with evidence of nondisclosure rests on the plaintiff. Once such e vidence
has been produced, then the burden of going forward with evidence pertaining to justification for
failure to disclose shifts to the physician.
Whenever appropriate, the court should instruct the jury on the defenses available to a doctor who

1. For example, the risks inherent in the simple process of taking a common blood sample are said to include hematoma,
dermatitis, cellulitis, abscess, osteomyelitis. septicemia, endocarditis, thrombophlebitis, pulmonary embolism and death,
to mention a few. (Harrison, Principles of Internal Medicine (5th ed. 1966) pp. 726, 1492, 1510-1514.) One commentator
states that California law does not require that the “patient be told too much.” (Hagman, The Medical Patient's Right to
Know, supra, 17 U.C.L.A. L.Rev. 758, 766.)
Intentional Torts vs Negligence (Socratic Script) | 97

has failed to make the disclosure required by law. Thus, a medical doctor need not make disclosure
of risks when the patient requests that he not be so informed. (See discussion of waiver: Hagman,
The Medical Patient’s Right to Know, supra, 17 U.C.L.A. L.Rev. 758, 785.) Such a disclosure ne ed not be
made if the procedure is simple and the danger remote and commonly appreciated to be remote. *246
A disclosure ne ed not be made be yond that required within the me dical community when a doctor
can prove by a preponderance of the e vidence he relied upon facts which would demonstrate to a
reasonable man the disclosure would have so seriously upset the patient that the patient would not
have be en able to dispassionately weigh the risks of refusing to undergo the recommended treatment.
(E.g., see discussion of informing the dying patient: Hagman, The Medical Patient’s Right to Know,
supra, 17 U.C.L.A. L.Rev. 758, 778.) Any defense, of course, must be consistent with what has been
termed the ‘fiducial qualities’ of the physician-patient relationship. [c]
The judgment is reversed.
Note 1. From the plaintiff or patient’s perspective, why does it matter to distinguish negligence from
battery?
Note 2. From the defendant or physician’s perspective, why does the distinction matter?
Note 3. Why does the court state a preference for the obje ctive test for the patient in informed
consent?

Expand On Your Understanding – Socratic Script: Cobbs v. Grant

Question 1. What were the legal issues in this case?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=33#h5p-22

Question 2. What was the holding in this case? Why could the verdict below not stand?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=33#h5p-23

98 | Intentional Torts vs Negligence (Socratic Script)

Question 3. What is the dispute concerning expert testimony in the case, and how does the court justify
its decision in that regard?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=33#h5p-24

Question 4. The court states that on retrial, below, the court would ordinarily need to determine
whether to instruct the jury to consider informed consent in terms of negligence or battery. Which does
it tell the court to apply, and what reasoning does it provide?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=33#h5p-25

Question 5. What are some real-world consequences that may flow from categorizing a claim as battery
vs. negligence? What’s the rationale underpinning the distinction?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=33#h5p-26

Check Your Understanding – Set 11

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=33#h5p-27

Intentional Torts vs Negligence (Socratic Script) | 99

Reflection Essay on the Implications of Tort Law’s Impact (Recommended maximum word count 300 words)

Several of the cases we have read so far have involved elements of race, gender, class, ability and
socioeconomic power. We have also discussed tort law’s normative purposes (fairness, efficiency,
compensation, deterrence, and social justice). Identify one example from a case in this module that
shows courts failing to live up to one of these purposes. In your example, you might choose to discuss
whether you see the court prioritizing one of tort law’s purposes over another. If so, does the court
justify that balance? Generally, what are you observing about how the law works, or fails to work? There
is no “right” answer here, simply a means of inviting you to reflect on your readings and engage with the
deeper ideas of the course.

100 | Intentional Torts vs Negligence (Socratic Script)

PART II

MODULE 2: INTENTIONAL TORTS
In Module 1, you learned the differences between negligence (which governs the risk of injury and
requires that people use ordinary (or reasonable) care in their conduct); strict liability (which imposes
liability without fault or intent); and the intentional torts, which are organized around some le vel of
intent to act in a way that causes harm. This last domain is our focus in Module 2, as we e xplore how
tort law regulates conduct that reflects the intention to invade the legally protected interests of
another, whether those interests are in the pe rson’s body, mind, property, possessions, privacy or
reputation.
The intentional torts are, in some respects, an artificial grouping of torts characterized by what they
lack: a purely accidental character. Even activities that cause policymakers to apply strict liability can
rise to the le vel of intentional torts if in their conduct the parties cease to se em merely careless,
or even reckless, and instead seem aware that their actions will invade legally protected interests.
Despite the contemporary treatment of the many intentional torts under one umbrella, in fact the
category is an invented one and the se torts differ quite a bit from each other. The intent standard
is not consistent across all of the

intentional torts, for example: for one

tort it drops down to

recklessness (intentional infliction of emotional distress) and for another tort it rises to specific intent
(false imprisonment). The proof requirements also differ: battery and trespass require no proof of
harm for liability to arise (but without proof of harm, damages are likely to be only nominal). Yet
false imprisonment requires confinement along with awareness of false imprisonment and intentional
infliction of emotional distress requires not just distress but severe distress.
That the intentional torts continue to be grouped and taught together may owe some thing to their
early English predecessors. In the e arly tort law (roughly from the 13th through 18th centuries), a
system developed that required that legal actions be ple d in specific ways using particular forms
and “writs.” Failure to comply with strict pleading requirements or use of the wrong form resulted
in dismissal of the case with prejudice and many actions were thus de cided on formal rather than
substantive grounds. The system worked well for plaintiffs who complied with pleading requirements,
however; if they could correctly plead all the ne cessary elements, they were likely to win. The English
writ system laid the foundation for our current intentional torts, most of which are characterized by
a “rule-like” aspect. The international torts’ elements are often more e asily pled and proven than the
elements of negligence.
Over time, the writ system sorted wrongful actions into two kinds. The first were known as actions
in “trespass” and they typically required that the plaintiff prove the de fendant used force to cause a
direct invasion of some protected interest. The second, which came only later, were actions known
as “trespass on the case” and these permitted recovery more broadly, including for harm not caused
by force and harms caused indirectly. Trespass on the case grew into a body of law that eventually
provided the basis for American negligence law, which reflects that injured plaintiffs may be able to
recover even when a defendant did not act with a particular intent or force but were merely negligent,
Module 2: Intentional Torts | 101

and even when the defendant’s conduct was indirect or attenuated in some way. The contemporary
intentional torts system likewise reflects the e arlier trespass actions and share characteristics of the
writ system, such as distinct and rigid pleading requirements, a narrow scope of applicability and high
likelihood of success for plaintiffs who can successfully plead the requisite elements. These “rule-like”
aspects are characteristic of the writ system and an important difference from negligence which is
governed not by a rule but a standard—reasonableness.

Rules vs. Standards
In the legal understanding “rules” tend to be characterized in the following way: they are cle ar,
easier (and thus cheaper) to apply, generalized, rigid, inflexible (and perhaps sometimes unfair as a
result). “Standards” tend to be characterized thus: they are less clear or even indeterminate; they
are harder (and usually more e xpensive) to apply partly because the y are capable of flexibility; they
can be

tailored to the

facts at hand (but this also means they must be

tailored to the

facts at

hand). A rule is conceptually something that can be applie d without recourse to a body of norms
or additional evidence (such as no smoking allowed). A standard is something that may require
contextual information or extrinsic evidence

(such as smoke

only when other customers are

reasonably far away). Philosophers and debaters among you will immediately spot that in fact rules are
much more complicated than that; there are open-textured rules or rules with complicated terms and
standards in some instances develop predictable patterns that make them easier to apply than it might
seem. However, it’s a helpful distinction to employ especially when you shift gears from intentional
torts to Negligence in later Modules.

Check Your Understanding – Set 12

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=35#h5p-28

Learning to navigate the common law system requires that you develop skills of reading accurately,
synthesizing case law and predicting outcomes and changes, to some extent. That’s one significant
reason why history matters. Understanding a bit about the history of tort law’s origins, for instance,
helps you understand why the intentional torts are narrowly construed and informs your educated
guesses about what a court is likely to do in a case of first impression. This historical context also helps
102 | Module 2: Intentional Torts

explain why the intentional torts were e ventually deemed insufficient to protect the range of interests
considered vital and necessary to protect. The intentional torts were originally a narrowly defined set
of torts meant to protect bodily autonomy. Assault, even though it captures non-physical harm, does
so only because it was conceived of as a means of protecting the body and the mental state that arises
when anticipating bodily harm. The tort of false imprisonment protects the freedom of movement, but
though this is conceptual, it too orients the protection in the body. The tort of defamation protects
the interest in maintaining one’s reputation but this requires external manifestations in the form of
communications to others that are provably harmful in some way. The big gap in coverage concerned
suffering emotionally or psychologically in the absence of physical harm. When tortious conduct
of any kind causes physical harm, a plaintiff may also recover for their emotional or psychological
distress, which is considered “parasitic” of—or derived from—the physical harm. But what about the
cases in which bad behavior results in emotional distress alone?
In Wilkinson v. Downton, 2 Queen’s Bench Division 57 (1897), a court in England held that a woman
could recover when she suffered shock after being the victim of a prank:
“In this case the de fendant, in the e xecution of what he se ems to have regarded as a practical
joke, represented to the plaintiff that he was charged by her husband with a message to her
to the effect that her husband was smashed up in an accident, and was lying at The Elms
at Leytonstone with both legs broken, and that she was to go at once in a cab with two
pillows to fetch him home. All this was false. The effect of the statement on the plaintiff
was a violent shock to her nervous system, producing vomiting and other more serious and
permanent physical consequences at one time threatening her reason, and entailing weeks
of suffering and incapacity to her as well as expense to her husband for medical attendance.
These consequences were not in any way the result of previous ill-health or weakness of
constitution; nor was there any evidence of predisposition to nervous shock or any other
idiosyncrasy. [***] The defendant has, as I assume for the moment, wilfully done an act
calculated to cause physical harm to the plaintiff — that is to say, to infringe her legal right to
personal safety, and has in fact thereby caused physical harm to her. That proposition without
more appe ars to me to state a good cause of action, there being no justification alleged for the
act.”
The

judge

de clined to find fraud and distinguished prior cases that had withheld damage
s for

emotional distress produced in connection with slander. Here, he found there was sufficient intent
to cause some form of impact on the plaintiff and that should be enough, even though “no malicious
purpose to cause the harm which was caused nor any motive of spite is impute d to the defendant.”
The court’s recognition of what would be called “intentional infliction of mental shock” laid the
groundwork for American courts to begin to consider and eventually adopt the tort of intentional
infliction of emotional distress. However, that such an action was now viewed as possible did not mean
that it was soon or routinely used. The Restatement of Torts Second § 46 was only amended in 1947
to reflect the possibility of recovery under IIED and California, a progressive jurisdiction with respect
to torts, adopted it only in 1952. In the 1960s, some states began recognizing the tort as a standalone
cause of action; others came later, such as Florida, which did not recognize the tort until 1985.

Module 2: Intentional Torts | 103

Many courts continue to cite to the Restatement’s formulation of the tort in language that may
be

more

e vocative than helpful: “Liability has bee
n found only where

the

conduct has been

so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case
is one in which the recitation of the facts to an average member of the community would arouse
his resentment against the

actor, and lead him to exclaim, “Outrageous!”” Restatement (Second)

of Torts § 46 cmt. d (1965)
Whatever the similarities and differences in the technical aspects of the various intentional torts,
their core conceptual difference remains that intent, rather than fault or policy, is present in a way
that the law deems important. An oft-quoted line from the jurist Oliver Wendell Holmes suggests
an intuition about why we

divide

the se

regimes in this way: “Even a dog knows the

difference

between being stumbled over and being kicked.” Oliver Wendell Holmes, The Common Law, Mark
DeWolfe Howe, ed. (Little Brown, 1963), p. 3. Something attaches to the knowledge that a harmful
action was purely accidental in character; even if negligence or another claim is available against
the actor, the moral judgment—and possibly legal implications—will weigh less heavily on the actor.
If a person intentionally acts in such a way that another suffers harm, the pleading and proof
standards will generally be e asier for a plaintiff to meet and the defendant will be unable to asse rt
the powerful defense of comparative negligence against the plaintiff. These differences reflect the
system’s recognition that the scale tips slightly towards the victim right from the start. The starting
premise is that intent matters. The question will be how to define it. In many respects, defining intent
is the most challenging aspect of the intentional torts whose rule-like qualities often otherwise make
them more straightforward to learn than negligence law will prove to be.

104 | Module 2: Intentional Torts

7. Intent
The intent level needed to satisfy most of the intentional tort action is an intent to act followed by
the action itself. If an action is produced involuntarily (through a seizure, while sleeping or drugged
against one’s will, for instance), the actor lacks the requisite intent. If an actor throws a ball at
someone, hoping they will catch it, the intent to throw is the focus of the inquiry. Some courts have
called this “purpose intent.” If the throw causes bruising when the ball accidentally hits the receiver’s
face, it does not defeat the thrower’s intent even if the harm was unintended. Tort law calls the intent
to cause the harm that happened (here, the facial bruising), “specific intent.” Specific intent is not
required for most of the intentional torts and it is an error of law to confuse the standards; specific
intent is higher than necessary for most intentional torts. (The e xception is false imprisonment which
requires proof of the specific intent to confine the plaintiff.)
Restatement of the Law (Third) of Torts: Liability for Physical and Emotional Harm:
§ 1. Intent: A person acts with the intent to produce a consequence if:
(a) the person acts with the purpose of producing that consequence; or
(b) the person acts knowing that the consequence is substantially certain to result.

Villa v. Derouen Court of Appeal of Louisiana, Third Circuit (1993)
(614 So.2d 714)
This is an appeal by Eusebio Villa, plaintiff and appellant herein, from a jury verdict in favor of Michael
Derouen, Villa’s co-employee, and Louisiana Farm Bureau Mutual Insurance Company, Derouen’s
homeowner insurer, defendants and appellees herein. This case involves facts wherein an intentional
act, by Derouen, i.e., the act of pointing a welding cutting torch in Villa’s direction and intentionally
releasing oxygen or acetylene gas caused unintentional harm to Villa, i.e., second degree burns to
Villa’s groin area.
After trial, the jury found that the defendant, Derouen, did not commit an intentional tort against Villa
and, therefore, was not liable for Villa’s injuries. This finding of the jury foreclosed Villa from recovery
in this action insofar as Villa is limited to worker’s compensation unless it was found that Derouen
committed an intentional tort which caused Villa’s injuries.
Villa appeals contending that the jury erred in its finding that Derouen did not commit an intentional
tort against Villa. We agree with Villa’s contentions and find that the jury clearly erred in finding
that Derouen’s intentional act of spraying his welding torch in Villa’s direction did not constitute an
intentional tort, specifically, a battery against Villa. As such, we reverse the judgment of the trial court
and award damages accordingly.

Intent | 105

This claim for damages arises out of an accident which occurred at M.A. Patout & Sons, Iberia Parish,
Louisiana, on May 7, 1986. The e vidence is undispute d that Eusebio Villa sustained burns to his crotch
area and that these burns were caused by the actions of his co-employee, Michael Derouen. At the
time of the accident, Villa was welding with a welding torch or welding whip. Derouen was standing to
his left, using a cutting torch. Intending only horseplay, although one-sided, Derouen turned toward
Villa and discharged his torch. Under cross-examination, Derouen responded affirmatively when
asked if he placed the torch between Villa’s legs and also responded affirmatively when asked if he
intended to spray Villa between the legs with oxygen when he placed the torch between Villa’s legs.
On direct examination, in response to questioning by his own attorney, Derouen qualified his previous
answers, as follows:
“Mr. Lambert: … you did not have it in close proximity to his crotch?
Mr. Derouen: No.
Mr. Lambert: In fact, you did not even have it inside his body?
Mr. Derouen: No.
.....
Mr. Lambert: When you squirted that, did you intend that that air actually cause him any pain, even
minor pain?
Mr. Derouen: No.
Mr. Lambert: Did you intend that he even feel anything from the little bit of air?
Mr. Derouen: No.
Mr. Lambert: Why did you do it? What was your intention of doing that?
Mr. Derouen: To get his attention.”
Troy Mitchell, a co-employee, testified that a few minutes before the accident, he saw Derouen take
his torch and blow pressurized oxygen behind Villa’s neck into Villa’s lowered face shie ld while Villa
was welding. Mitchell testified that he told Derouen not to do that because it could ignite. Mitchell
additionally testified that he thought Villa had also told Derouen to stop fooling around. Only a few
minutes later, the accident which resulted in Villa’s burns occurred. Mitchell did not witness the
accident because his welding hood was down at the time.
Marty Frederick, a co-employee of Villa’s, and Lambert Buteau, their supervisor, both testified that
although they did not witness the incident, and could not remember Derouen’s exact words after the
incident, *716 both understood that Derouen, in relating what had happened, was playing around with
the cutting torch and “goosing” or trying to scare Villa at the time of the accident.
Derouen testified that he sprayed pressurized oxygen near plaintiff’s face prior to the accident. Villa
testified that he felt the oxygen that Derouen blew on his face or he ad, heard Troy Mitchell telling
Derouen to stop because Villa could be hurt, and made a remark himself to Derouen about it. Villa
testified that, a few minutes later as he was welding with his face covered by his welding hood, he
felt something blowing between his legs. He held still for a second, so as to not interrupt his welding,
until he felt the pain in his groin area. He stated that, “I just grabbed with both of my hands. When I

106 | Intent

grabbed, it was a torch.” He continued by stating, “I grabbed in my private area where I feel the fire,

1

and right there was the torch. I pushed it like that. It was Michael Derouen with the torch in his hand.”

The fact that Villa reached down to his groin at the time of the injury, and either grabbed the torch
or pushed it away, was undisputed at trial. It was also undisputed that, at the time of the accident,
Villa was crouched welding with his welding hood down. The e vidence revealed that while he was
we lding, due to the noise caused by the welding, Villa would not have he ard Derouen’s torch aimed in
his direction.
If an employee is injured as a result of an intentional act by a co-employee, LSA–R.S. 23:1032(B)
allows him to pursue a tort remedy against that co-employee. In Bazley v. Tortorich, 397 So.2d 475
(La.1981), the Louisiana Supreme Court determined that “an intentional tort”, for the purpose of
allowing an employee to go beyond the e xclusive remedy of worker’s compensation, meant “the same
as ‘intentional tort’ in reference to civil liability.”
A civil battery has been defined by the Louisiana Supreme Court in Caudle v. Betts, 512 So.2d 389,
391 (La.1987) as, “[a] harmful or offensive contact with a person, resulting from an act intended to
cause the plaintiff to suffer such a contact….” (Citations omitted.) The Louisiana Supreme Court in
Caudle, supra, at page 391, continued by stating: “The intention need not be malicious nor ne ed it be
an intention to inflict actual damage. It is sufficient if the actor intends to inflict either a harmful or
offensive contact without the other’s consent. (Citations omitted.) ….
“The element of personal indignity involved always has bee
n give
n considerable

weight.

Consequently, the defendant is liable not only for contacts that do actual physical harm,
but also for those relatively trivial ones which are merely offensive and insulting. (Citations
omitted.)
The intent with which tort liability is concerned is not necessarily a hostile intent, or a desire
to do any harm. Restatement (Second) of Torts, American Law Institute § 13 (comment e) (1965).
Rather it is an intent to bring about a result which will invade the interests of another in a
way that the law forbids. The defendant may be liable although intending nothing more than
a good-natured practical joke, or honestly believing that the act would not injure the plaintiff,
or even though seeking the plaintiff’s own good.” (Citations omitted.)
Pursuant to this jurisprudence, we must de termine whether Derouen committed a battery against
Villa. Did Villa suffer an offensive contact which resulted from an act by Derouen which was intended
to cause that offensive contact? Or as stated by Bazley, supra, at page 481, did Derouen entertain “a
desire to bring about the consequences that followed”, or did Derouen believe “that the result was
substantially *717 certain to follow”, thereby characterizing his act of spraying Villa as intentional?
There is a distinction between an intentional act which causes an intentional injury and an intentional
act which causes an unintentional injury. To constitute a battery, Derouen need only intend that the

1. Mr. Villa is a Puerto Rican native who came to the United States for the first time in 1973 and has a strong Spanish
accent.
Intent | 107

oxygen he sprayed toward the plaintiff come into contact with Villa, or have the knowledge that this
contact was substantially certain to occur.
The physical results or consequences which must be desired or known to a substantial certainty in
orde r to rise to the le vel of an intentional tort, refer to the requirements of the particular intentional
tort alleged. In this case, wherein Villa has alleged a battery, the harmful or offensive contact and not
the resulting injury is the physical result which must be intended.
The record reveals that, although correctly instructed by the trial court, the jury appears to have be en
confused on this issue and, as such, manifestly erred, as a matter of law, in their verdict. The court
instructed the jury as follows, as to the definition of the intentional tort of battery:
“In order for Eusebio Villa to recover from anyone in this case, he must first prove, by a
preponderance of the e vidence, that he was injured as a result of an intentional act. The
meaning of intent in this context is that defendant either desired to bring about the physical
results of his act, or believed that they were substantially certain to follow from what he did.
Eusebio Villa has alleged that Michael Derouen committed a battery upon him. A harmful or
offensive contact with a person resulting from an act intending to cause the plaintiff to suffer
such a contact is a battery. A battery in Louisiana law is an intentional act or tort.
The intention to commit the battery need not be malicious nor ne ed it be an intention to inflict
actual damage. The fact that it was done as a practical joke and did not intend to inflict actual
damage does not render the actor immune. It is sufficient if the actor intends to inflict either a
harmful or offensive contact without the other’s consent. It is an intent to bring about a result
which will invade the interests of another in a way that the law forbids. . . . . .”
Although this definition was technically correct, several defense counsels, both in opening and closing
statements, told the jury that, in order for them to find Derouen liable, they must find that Derouen
intended to hurt Villa and/or intended to burn Villa. Additionally, the jury was misled by statements
that their verdict in favor of Villa would make Derouen a criminal insofar as a battery was a crime.
The jury voiced its confusion by sending a question to the judge asking him what the difference was
between “an intentional tort and intentional (on purpose).” After the judge again instructed the jury
with the charge se t forth above, the jury sent out the query below [“Does the law in simple words
means [sic] the intent to perform the act was meant but, not the harm resulting?”] to which the trial
judge answered, as written [“The only response I can make is to reread the charge.”]: *718

108 | Intent

Clearly the jury was confused as to whether they were to de termine Derouen’s intent to perform the
act or his intent to cause the resulting injuries. No clarifying instruction was given to the jury on this
point of law. Had they understood the law, a reasonable juror could not have found that Derouen did
not intend the act of directing compressed oxygen in the direction of Villa’s groin.
This distinction between an intentional act or unintentional act was recently highlighted in Lyons v.
Airdyne Lafayette, Inc., 563 So.2d 260 (La.1990). In Lyons, an employee sue d a co-employee alleging
injuries as a result of the co-employee shooting a stream of compressed air at the plaintiff. The trial
court granted summary judgment which was affirmed by this court. The Louisiana Supreme Court
granted a writ of certiorari, and reversed the grant of summary judgment in favor of the defendant,
stating as follows:
“There is a ge nuine issue of material fact whether plaintiff’s co-employee intentionally shot the
stream of compressed air at plaintiff and injured him or whether the co-employee accidentally
released the stream while repairing the compressor.” Id. at page 260.
Conversely, in the case at bar, there is no question as to whether or not Derouen intentionally shot
the stream of compressed air at Villa.
This is not a case of an accidental release of pressurized oxygen or gas in Villa’s direction. Derouen
testified that he did not intend, eve n the air he was pointing in Villa’s direction, to come into contact
with Villa. It was unreasonable for the jury to accept that Derouen blew his torch at Villa, while Villa
was welding and surrounded by the accompanying noise, in order to get Villa’s attention, but did not
intend for Villa to feel the air directed at him.
In this case, Derouen intended to release the pressurized oxygen in Villa’s direction, at a minimum, to
Intent | 109

get Villa’s attention. Due to the noise , he would not have be en able to get Villa’s attention unless Villa
felt the air.
The facts are undispute d that Derouen aimed his welding torch and sprayed the pressurized oxygen
or gas, which ignited, at Villa’s groin or at the ground between Villa’s legs. It is also undisputed that
Villa was injured by the contact with the “flash” of Derouen’s welding torch.
*719 We find that the jury clearly erred in finding that a battery, i.e., an unconsented to offensive
contact, had not occurred. The

act or battery which Derouen intended was that of blasting

pressurized oxygen or gas between Villa’s legs, into his groin area. Derouen testified that he merely
wanted to get Villa’s attention. Due to the undispute d evidence that Villa was welding at the time of
the injury, which welding was by its nature, accompanied by the noise of the welding, the defendant
would not have approached Villa, expecting or intending him to “hear” the blast of air and thus, get his
attention, without also expecting or intending Villa to “feel” the blast of pressurized oxygen and thus,
get his attention.
Under the undisputed facts presented to the jury, we find that a reasonable juror could not have
found that Derouen did not either intend for the air from his cutting torch to come into contact with
Villa’s groin or, alternatively, we find that a reasonable juror could not have found that Derouen, in
pointing his torch at Villa and releasing pressurized oxygen in the area of Villa’s groin, was not aware
or substantially certain that the oxygen would come into contact with Villa’s groin area.
Villa sustained second degree burns to his penis, scrotum, and both thighs. He was first seen by Dr.
James Falterman, Sr. on May 8, 1986, who hospitalized him from May 8, 1986, through May 16, 1986. Dr.
Falterman testified that Villa was reasonably comfortable, with pain medication and treatment, within
three (3) to four (4) days and, at a maximum, within one (1) week after the accident. Villa’s physical
wounds healed completely, with some depigmentation, but no functional disability. He was discharged
from treatment of his burns as of June 20, 1986.
Villa complained of being nervous and depressed on May 15, of 1986, and requested to see

a

psychiatrist. Villa was referred by Dr. Falterman to Dr. Warren Lowe, a clinical psychologist, who first
saw Villa on June 9, 1986. Dr. Lowe diagnose d Villa as suffering from atypical anxiety disorder with
depressive features together with some symptoms of post-traumatic stress disorder. At the time of
trial, Dr. Lowe felt that Villa was getting better and was capable of entering a rehabilitation program.
[Editor’s note: The court ordered Derouen and his homeowner’s insurance

company to pay

$174,307.00. Module 6, on damages, revisits this case.]
The jury’s verdict finding that Michael Derouen did not commit an intentional tort is hereby reversed.
Note 1. Derouen testified that he did not intend for the air to make contact with Villa. How did the
court dispose of that assertion? What did it say about the jury’s verdict with respect to this point?
Which standard of intent does the court apply?
Note 2. For what purpose doe s the court cite Lyons v. Airdyne (*718), and what’s the de eper issue at
stake?
110 | Intent

Note 3. Transferred intent doctrine. Changing the facts of this case, if Mr. Derouen had intended to
make contact with Mr. Jones, but accidentally hit Mr. Villa, the rules of intent would still have allowed
Mr. Villa to bring a lawsuit. Under the doctrine of “transferred intent,” a defendant cannot escape
liability by having the good luck to have bad aim. Indeed, the presumption is that had he hit Mr. Jones,
Mr. Jones would have be en the plaintiff instead. The doctrine, which has its origins in the writ system,
has two aspects. First, if a defendant meets the requisite intent with respect to one person, but the
effect of the conduct instead invades the interest of another, the required intent “transfers” from
that intended person to the person actually wronged. Second, if a defendant meets the requisite
intent for any of the core intentional torts (battery, assault, false imprisonment, trespass to chattels,
or trespass to land), it can be transferred to satisfy the intent of any of the others. It does not apply
to IIED (or to conversion, a tort related to personal property not covered in this casebook). In other
words, the defendant does not escape liability by explaining that they merely meant to trespass on
your property, but not to affect your chattels in anyway, or by explaining that they merely meant to
frighten you into thinking they were about to harm, not to actually harm you, once the y actually do
commit a battery. If they meet the intent requirement for assault, it can be transferred to battery.
Note 4. Practice Stating the Rule. Notes and questions following assigned cases have focused thus
far on formulating the legal question and holding but have not yet routinely asked you to formulate
the “rule” of a case. Sometime s the rule is synonymous with the holding but often it’s not. The rule
te nds to be the principle for which the case will be cited (and there may be more than one rule , too).
Discove ring the rule requires skill that you will develop over time, as well as flexibility: often the rule
can be e xpressed in different ways, which may seem frustrating for those se eking a single correct
answer, and sometimes the full scope of the rule will take subse quent cases to discern and develop
fully. Recall how the holding in Davison altered slightly in Bartlett’s application of it, for example.
Courts may later read a case for a certain proposition although that case ne ver originally came out
and announced its rule in that way. Consider how Guille v. Swan is now routinely understand as a
paradigmatic strict liability case when at the time it was analyzed in terms of tre spass. The rule as
initially announced ve rsus the rule as e nduring principle that may eventually have lasting importance
in the field can require some time to discern. This is why it is crucial to understand how rules evolve,
how the facts and policies at play can both yield to and change rules over time. It helps lawyers to
decode and predict the law, or at least to anticipate certain kinds of changes. That the rule can be
expressed in different ways, or that multiple rules can exist does not relax the need for precision.
Formulating the rule still requires precision. Practice stating the rule, or 1 or two 2 of the most
significant rules you see in Villa.
Note 5. Note that the court raises Mr. Villa’s accent (and ethnicity) in its own footnote. Consider why
it might have done so, and the possible effects on future courts and trials. Does the reference se em
to hurt or help (and whom, and why)? According to the authors of a leading torts casebook, the court
may have mentioned his ethnicity because Villa’s attorney, Charles L. Porter, believed that Villa was
a victim of racial harassment. Villa, a Dominican man, was dating an African-American woman and
his white Cajun fellow employees apparently found this objectionable and harassed him for it. “Villa’s
attorney, now a state judge in Louisiana, raised this issue at trial, but the predominantly white, Cajun
jury did not seem to respond well so he concentrated instead on the elements of the battery charge.”
(Interview with Charles L. Porter, plaintiff’s attorney, July 18, 2001. Ibrahim J. Gassama, Lawrence C.
Intent | 111

Levine, Dominick Vetri and Joan E. Vogel, Tort Law and Practice, Fifth Edition (Carolina Press, 2016),
p. 703.
The Restatement provided an additional way to define intent: knowledge, coupled with “substantial
certainty” that consequences will follow. If you tossed a ball in the air ne ar someone sle eping on the
grass nearby and you knew “to a substantial certainty” that the consequence would be that the ball
would strike that person, you intended to strike that person for the purposes of tort liability. In some
cases, this distinction makes little difference, but in others it adds nuance that the court might find
helpful or even dispositive. It is often easier to determine whether someone kne w something (or could
be e xpected to know something, because of their age or mental state or ability) than whether they
intended something.
A classic mistake is finding no intent unless there is e vidence of specific intent, which again means
the intent to produce the harm that happened. After all, you could toss a ball at someone, fully
intending to do that but imagining that your ball will land very lightly and be received in the spirit
of good humor. But you could discover that your ball actually dealt a crushing blow and broke bones
(perhaps because you were unaware of an underlying condition like brittle bones, or because you were
genuinely unaware of your own strength). Nonetheless, for tort law, you intended to make contact
and that is all that is needed. Trying to negate intent by explaining that you “didn’t intend to break
anybody’s bones” will no good—that would be elevating the intent standard from intent to make
contact to intent to bring about the harm that occurred from that contact. The former is the ordinary
(or “purpose”) intent standard (intent to make contact) and the latter is “specific intent” which is not
required (intent to produce the harm that occurred).
The ne xt case provides an example of an application of the Restatement’s “knowledge to a substantial
certainty.”

WMEL Water and Sewer Authority et al v. 3M, U.S. Dis. Ct. N.D. Ala.
(2016)
(208 F. Supp.3d 1227)
The

plaintiffs in this case

are

West Morgan-East Lawrence

Water and Sewer Authority (the

“Authority”), in its individual capacity, and Tommy Lindsey, Lanette

Lindse y, and Larry Watkins

(collectively “Representative Plaintiffs”), who bring this action both individually and on behalf of a
2

class of persons similarly situated. [***] The Authority and Representative Plaintiffs (collectively
“Plaintiffs”) assert common law claims of negligence (Count I), nuisance (Count II), abatement of
nuisance (Count III), trespass (Count IV), battery (Count V), and wantonness (Count VI) against 3M

2. The proposed class consists of “all owners and possessors of property who use water provided by the West Morgan-East
Lawrence Water and Sewer Authority, the V.A.W. Water System, the Falkville Water Works, the Trinity Water Works, the
Town Creek Water System, and the West Lawrence Water Cooperative.”
112 | Intent

Company, Dyneon, L.L.C., and Daikin America, Inc. Currently before the court is 3M and Dyneon’s
motion to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). [***]
This action arises out of defendants’ discharge of wastewaters containing perfluorooctanoic acid
(PFOA), perfluorooctanesulfonic acid (PFOS), and related chemicals into the Tennessee River near
Decatur, Alabama. Specifically, 3M and its wholly-owned subsidiary Dyneon own and operate
manufacturing and disposal facilities in Decatur, which have released, and continue to release, PFOA,
PFOS, and related chemicals into ground-and surface

water, through which the chemicals are

ultimately discharged into the Tennessee River. Daikin America manufactures tetrafluoroethylene and
hexafluoropropylene fluoropolymers, produces PFOA as a byproduct, and discharges PFOA, PFOS, and
related chemicals into the De catur Utilities Wastewater Treatment Plant. The Wastewater Treatment
Plant, in turn, discharges the wastewater into the Tennessee River.
*1232 Defendants discharge these chemicals thirteen miles upstream from the

area where

the

Authority draws water that it supplies to local water utilities, or directly to consumers. Although the
Authority treats the water, unsafe le vels of PFOA and PFOS remain in the drinking water because of
these chemicals’ stable carbon-fluorine bonds and resistance to environmental breakdown processes.
Studies, including one by an independent science panel, have

shown that absorption of these

chemicals may cause long-term physiologic changes and damage to the blood, liver, kidneys, immune
system, and other organs, and an increased risk of developing cancer, immunotoxicity, thyroid
disease, ulcerative colitis, and high cholesterol.
Plaintiffs allege that defendants continue to discharge these chemicals into the Tennessee River
despite knowing of the persistence and toxicity of PFOA and PFOS. Further, defendants are aware that
tests of the Authority’s treated water have shown elevated levels of these chemicals. The Authority
has consistently found PFOA levels at 0.1 ppb and PFOS levels at 0.19 ppb in its treated water, where
0.07 ppb is the current [Fn] EPA Health Advisory Level for both of those chemicals. As a result of these
levels, the Authority has incurred costs of testing its treated water, implementing pilot programs to
develop more effective me thods for the removal of PFOA and PFOS, and attempting to locate a ne w
water source.
Representative Plaintiffs and the proposed class are owners or possessors of property who consume
water supplied by the Authority and other water utilities that receive water from the Authority.
at 2. They allege personal injuries from their exposure to unsafe le vels of PFOA and PFOS in their
domestic water supplies, including elevated levels of those chemicals in their blood serum. In 2010,
the federal Agency for Toxic Substances and Disease Registry (“ATSDR”) analyzed the blood serum
of 121 customers of the Authority, including some of the Representative Plaintiffs and members of
the proposed class, for PFOA and PFOS, and found an association between elevated levels of those
chemicals and the use of drinking water supplied by the Authority. In addition to personal injuries,
Representative Plaintiffs and the proposed class claim diminution in their real property values, and
out-of-pocket costs for purchasing water filters and bottled water.
[***] E. Battery (Count V)
To state a claim for battery under Alabama law, a plaintiff must establish that: (1) the defendant
Intent | 113

3

touched the plaintiff; (2) the defendant intended to touch the plaintiff; and (3) the touching was
conducted in a harmful or offensive manner. [cc] Rest. (2d) of Torts § 18 (1965)). Representative
Plaintiffs and the proposed class allege that defendants “touched or contacted” them “through their
release of PFOA, PFOS, and related toxic chemicals” into plaintiffs’ water supply. Those plaintiffs
further allege that defendants “knew that their intentional acts would be substantially certain to result
in such contact,” and that such touching or contact “was and is harmful and offensive.”
1. Lack of physical injury
Defendants raise three arguments in support of their motion. First, they argue that plaintiffs have
suffered no manifest physical injury. This contention is unavailing, because a claim for battery in
Alabama does not require an actual injury to the body as an element of the claim. [cc]
2. Consent to the touching or contact
Second, defendants contend that dismissal is warranted because plaintiffs consented to the contact
by voluntarily drinking the water. Plaintiffs claim that they did not “consent to their ingestion of and
exposure to the se toxic chemicals,” and, alternatively, allege that “consent is at most an affirmative
defense to this claim that presents factual issues that cannot be resolved on a motion to dismiss.”
[c] Indeed, it is apparent from the face of the amended complaint that Representative Plaintiffs and
the proposed class use water filters or buy bottled water now, and once, voluntarily consumed the
water prior to learning of the contamination. Thus, the question this court must resolve is whe ther
the voluntary ingestion of water from the Authority (at least before the y learned of the contamination)
constitutes consent to the ingestion of the contaminants in the water. Because defendants failed to
cite any Alabama law that suggests that plaintiffs’ consumption *1237 of the water constituted consent
to their uninformed ingestion of PFOA and PFOS, the court will defer addressing this issue until the
summary judgment stage.
3. Intent
Finally, defendants contend that dismissal is warranted on the battery claim because defendants did
not specifically intend to touch or contact plaintiffs. Intent can be satisfied by substantial certainty [c]
Plaintiffs allege that defendants are aware that they discharge PFOA and PFOS into the water, and that
they know those chemicals appear at harmful levels in the treated water sold by the Authority. These
facts are sufficient to give rise to a reasonable inference that defendants discharge PFOA and PFOS
into the Tennessee River with substantial certainty that the water will be used for drinking and other
household purposes.
For all these reasons, the motion to dismiss the battery claim is due to be denied.
[***] For the reasons stated above, 3M and Dyneon’s motion to dismiss is [***] as to …battery (Count
V) [and other omitted] claims, and plaintiffs may proceed …, with the understanding that they may

3. A plaintiff can establish “intent” by showing that the defendant “desires or is substantially certain of the injury to result
from his or her act.” [c]
114 | Intent

not pursue a private nuisance claim or negligence claims base d on personal injuries. The court will
reserve ruling on the sufficiency of the class allegations until a later date.
Note 1. Is the knowledge intent standard necessary to the battery claim on these facts? Could a
purpose intent standard have worked as well? What sort of evidence do you think plaintiffs would
need to show in proving either kind of intent? Is the difference one of kind or of degree?
Note 2. Tort law is one of the tools in environmental advocacy, whether it take s the shape of impact
litigation, class actions or doctrinal developments to permit certain sorts of lawsuits. Professor
Sanne Knudsen has written on the way that chemical latency could frustrate tort law’s causation
requirement, for instance, and advocated the de velopment of causation frameworks that can account
for the complexities of what she has called “long-term torts” with significant ecological harms. Sanne
H. Knudsen, The Long-Term Tort: In Search of a New Causation Framework for Natural Resources
Damages. 108 Nw. U. L. Rev. 475 (2014),
https://digitalcommons.law.uw.edu/faculty-articles/15/
Given what you know about the purposes of tort law and its capacities for change over time, does tort
law seem like a good vehicle for achieving greater environmental justice? What do you imagine are the
drawbacks, limits and costs of using tort law in this way?
Note 3. The court acknowledges that consent could defeat the plaintiffs’ claim because members of
the class voluntarily drank polluted water; it will require resolution at a later date and this litigation is
still unresolved. What do you think descriptively and normatively of this concept of consent?

Variations in Mental State
Another complexity in the de termination of intent is that certain states of mind can negate intent
though it’s not always intuitive which ones. Mental illness or disability does not negate intent so long
as the defendant had the capacity to form the requisite intent (which is a question of fact for the jury).
However, early case law is often not very nuanced in assessing mental states. Some cases may refer
to people with mental illness or disabilities as “deficient” or abnormal or worse. It is worth paying
attention to how advances in psychology make both the rhetoric and the substance of tort law more
equitable over time. Being a child does not necessarily negate intent; the question will depend on how
the jurisdiction treats youths and what we can determine about what they know.
Being drugged against one’s will most likely negates intent for everything that follows or a good deal
of it, given that your powers of volition will be se verely impaired. But being drunk does not negate
intent. Nor does being mistaken about the facts; if you pick up a very lifelike-looking toy gun believing
it to be a gun and try to shoot someone, your actions are no le ss culpable for the fact that you were
mistaken about the status of the gun. This is different from bad aim or an intent to act that produces a
different outcome from the particular one intended, which arose above in discussion of the doctrine

Intent | 115

of transferred intent. Transferred intent applies only to the intent necessary for five torts: battery,
assault, false imprisonment, trespass to land and trespass to chattels.

Check Your Understanding – Set 13

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=37#h5p-29

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=37#h5p-30

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=37#h5p-31

Classmate’s Kick Hypothetical: A twelve year-old boy, Abe, kicks another boy, Ed, while they are
seated in their classroom. The kick makes contact with Ed’s kneecap which has, unbeknownst to Abe,
a particular sensitivity. The kick causes intense damage and ensuing infection. Abe feels bad, but
protests that he never intended this kick to hurt, and besides, he had no idea about Ed’s hidden
condition. Abe’s father, who went to the same school as these young boys, and remembers fond
games of tackle football with Ed’s father, says he is sure he has seen these boys wrestling on the
playground before. How is this any different, he asks. He thinks that boys need to be able to engage in
physical activity and roughhousing and this would be a ridiculous thing to sue over; can’t they laugh
it off? Two surgeries later, Ed and his family aren’t laughing.

116 | Intent

How would you use the rule you formulated in Villa to address this hypothetical? Or, if your rule(s) do
not seem to govern this case, practice creating a new, descriptively accurate statement of law that
analogizes or distinguishes this fact pattern from Villa.

Note 1. Eggshell Plaintiff or Thin Skull Plaintiff Doctrine. This hypothetical is loosely based on the
facts of Vosburg v. Putney, a classic torts case which stands for several points of law (including on
intent, context for conduct, and damages) (50 N.W. 403, Wis.) (1891). With respect to damages, it
holds that just because the amount of harm was unexpected, the defendant is no less liable if their
conduct otherwise satisfies the element of the tort. Sometimes known as the eggshell plaintiff or “thin
skull” plaintiff doctrine, this principle predates Vosburg but is often cited in connection with it. The
doctrine holds that the defendant “takes their plaintiff as they find them.” If a plaintiff has a thin,
more e asily injured skull that may not be apparent to the defendant yet the defendant will still be
liable for the e xtra damages this particular plaintiff suffers so long as the defendant’s conduct met
the elements of the tort in question. Even if a plaintiff is extraordinarily susceptible to harm (they
have brittle bones or for whatever reason the harm the y suffer from the tortious conduct is worse
than another plaintiff’s would have be en), this doctrine makes it the defendant’s, not the plaintiff’s
problem to resolve. Note that the eggshell doctrine does not only apply to pre-existing conditions; it
can apply to a predisposition towards suffering worse harm or an unfortunately worse outcome. The
standard for harm is thus not “objective” (what would a reasonable person’s injuries have be en under
the circumstances”) but “subjective” (what did this person actually suffer, on account of the defendant’s
misconduct?
In Smith v. Leech Brain & Co., 2 Q.B. 405 (1962), the plaintiff, William Smith, was injured at work when
his employer failed to provide ade quate safeguards to prevent injury in the presence of molten metal.
Smith sustained a serious burn on his lip from a spattering of molten metal, and while only the lip was
burned, the wound failed to heal. Smith eventually developed cancer at the point of the burn which
caused his death. His wife sue d for damages and won. The court rejected the defendant’s arguments
that the damages suffered were out of proportion to the harm by the defendant. Though that was a
negligence case, it illustrates the application (in all domains of tort law) of the eggshell plaintiff rule.
Note 2. One scholar e xplore s the use of the eggshell plaintiff doctrine to de al with pre-existing
conditions that are not created by new tortious conduct but significantly worsened by it. Dean Camille
Nelson analyzes when courts have use d the doctrine in service of corrective justice, and considers
its analogous use to redress harms to women and people of color for whom pre-existing traumas or
particular conditions might be triggered or worsened by tortious conduct:
“The e xtent to which the Thin skull doctrine has be en stretched is evidenced by the case

Intent | 117

4

of Warren v. Scruttons Ltd. The plaintiff had a pre-existing ulcer on his left eye when he
cut his finger on a wire on the de fendant’s equipment. The wire apparently had a type of
chemical on it, described as “poison,” which led the plaintiff to contract a fever and a virus. This
resulted in further ulceration of the e ye. The defendant was found liable and the court held
that, “any consequence which results because the particular individual has some pe culiarity
5

6

is a consequence for which the tortfeasor is liable.” In terms of equality arguments, women
have be en compensated for injuries specific to our sex. For instance, the Thin-skull doctrine
has been applied to compensate pregnant women who have suffered miscarriages or who
7

have had stillborn children. Similarly, where a woman whose ovaries were weakened by a
previous operation suffered injury as a result of a sudden stoppage of a train, the court granted
8

recovery on the basis that “the weak will suffer more than the strong.” If sex does not present
a bar to recovery based upon particular vulnerabilities, why should race? Race-related, or
racism-related mental disorders, might similarly be infuse d into the Thin-skull doctrine as it
has generally allowed for recovery based upon such mental vulnerabilities. Alternatively, this
might more properly justify consideration of the Eggshell personality doctrine. If a physical
injury triggers mental suffering or nervous disorders, the defendant must pay the resultant
9

damages, even if they are more serious than might be e xpected. If, however, there is a
pre-existing mental condition rendering the plaintiff particularly vulnerable, courts may still
allow recovery, thus transforming the

thin-skull plaintiff into one

a plaintiff with

an eggshell personality.
Camille A. Nelson, Considering Tortious Racism, 9 DePaul J. Health Care L. 905, 960–61 (2005)
Note 3. Having read about the eggshell plaintiff and begun to consider its possible e xtensions and
limits, revisit your understanding of intent. Might it make se nse to apply the eggshell plaintiff doctrine
only in cases in which there was a particular intent level, such as specific intent to harm? What is the
effect of its applicability to not just intentional torts but negligence? Which of tort law’s purposes is
most apparently driving the robust application of this doctrine?

4. Warren v. Scruttons Ltd., (1962) 1 Lloyd’s Rep. 497 (Q.B.D.).
5. Id. at 502.
6. See Dennis Klimchuk, Causation, Thin Skulls and Equality, 11 Can. J.L. & Juris. 115 (1998) (advocating for the entrenchment
of tort-like Thin skull principles in criminal law). Where, for instance, a victim is stabbed, looses [sic] a significant
amount of blood, denies a blood transfusion on religious grounds and dies, Klimchuk states that the thin-skull rule
should allow for the finding of proximate cause –to do otherwise would violate principles of equality. The defendant
should be found culpable for the death of the victim.
7. Malone v. Monongahela Valley Traction, 104 Va. 417 (1927); Schafer v. Hoffman, 831 P.2d 897 (1992).
8. Linklater v. Minister for Railways, [1900] 18 N.Z.L.R. 526, 540.
9. Linden, supra note 236, at 330. Linden points out that in a case involving the claim for mental suffering by a plaintiff as a
result of being thrown against a seat of a streetcar when it collided with a train, the Supreme Court of Canada
recognized that the “nervous system is as much a part of a man’s physical being as muscular or other parts.” Toronto
Railway Co. v. Toms, 44 S.C.R. 268, 276 (1911). Vargas v. John Labatt Ltd., [1956] O.R. 1007.
118 | Intent

Check Your Understanding – Set 14

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=37#h5p-32

Expand On Your Understanding – Intent Hypotheticals

Review the following hypotheticals, which feature various forms of violence to the body as a means of
testing the scope of the intent requirement. The questions are designed both to test some of the rules
you already know as well as to add to your understanding so do not feel too concerned if you are
learning some rules for the first time in addition to testing and reaffirming some rules you have already
learned thoroughly or seen once or twice. Turn each card to reveal the answer.

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=37#h5p-33

Intent | 119

8. Revisiting Assault and Battery
Assault: Elements
• an act, or threat of an action
• done with intent, that
• creates in the plaintiff a reasonable apprehension of
• imminent bodily harm
Battery: Elements
• unauthorized bodily contact by the defendant, which is
• harmful or offensive in nature, and
• made by the defendant with intent to touch

Exam tip: when you see a battery claim, look for an assault claim. Sometimes they travel together;
sometimes the fact pattern expressly triggers one claim but not the other, say because a plaintiff was
not ever touched (no battery) even if they were threatened with imminent harm or because a plaintiff
was touched in an offensive way but was not awake or aware during the time (no assault).

I de S et ux. v. W de S, At the Assizes (1348)
I de S and M, his wife, complain of W de S concerning this, that the said W, in the year, etc., with force
and arms did make an assault upon the said M de S and be at her. And W pleaded not guilty. And it was
found by the verdict of the inquest that the said W came at night to the house of the said I and sought
to buy of his wine, but the door of the tavern was shut and he be at upon the door with a hatchet which
he had in his hand and the wife of the plaintiff put her head out of the window and commanded him
to stop, and he saw and he struck with the hatchet but did not hit the woman. Whereupon the inquest
said that it seemed to them that there was no trespass since no harm was done. THORPE, C.J. There
is harm done and a trespass for which he shall recover damages since he made an assault upon the
woman as has been found, although he did no other harm. Wherefore tax the damages, etc. And they
taxed the damages at half a mark. Thorpe awarded that they should recover their damages, etc., and
that the other should be taken. And so note that for an assault a man shall recover damages, etc.
Note 1. Prior to this case, the law was uncertain on the question of whether an action could succeed
if the defendant’s actions hadn’t caused physical harm (what we now know as a battery). The tavern
owner and his wife lost before “the inque st” (the e quivalent of the lower court) and appealed to the

120 | Revisiting Assault and Battery

courts of assize (England’s traveling courts, which were organized into six judicial circuits). There the
plaintiffs won. The case is credited with being the origins of the tort of assault.
Note 2. In some instances, such as this case, an assault may lie when an attempted battery has failed to
make contact with the plaintiff. However, there does not need to be an attempted battery for a plaintiff
to make out a successful claim. Revisit the elements of assault and battery, below. Can you imagine
instances in which there is a clear case of assault and just as clearly no case of battery?

Hypothetical: the Zany Meat Inspector
Ibrahim an employee of Meatpacking Company, Inc., sustained serious injuries to his mouth as a
result of the actions of Peter, a meat inspector for the United States Department of Agriculture. A
truck shipment of beef arrived at the receiving dock of Meatpacking Co’s plant. Ibrahim was one of
the employees assigned to unload this truck. While doing so, he was suddenly and without warning
jumped by Peter, the inspector (whom he knew as a friend in the industry, and former co-worker).
Peter screamed ‘boo’, pulled Ibrahim’s wool stocking hat over his eyes and, climbing on his back,
began to ride him piggyback. As a result of this prank, Ibrahim fell forward and struck his face on
some meat hooks located on the receiving dock suffering severe injuries to his mouth and teeth.
Is this an intentional tort or negligence, and why?
Assuming the former, how would you analyze the intent issue?

Reynolds v. MacFarlane, Utah Appellate Court (2014)
(322 P.3d 755)
John Reynolds appeals from the trial court’s dismissal of his intentional tort claims against Bret
MacFarlane. We affirm in part, reverse in part, and remand to the trial court.
On August 5, 2009, MacFarlane walked into the break room at his workplace where his coworker,
Reynolds, was standing in front of the

microwave

oven. Reynolds was holding a ten dollar bill

somewhat loosely in his hand. Reynolds was unaware

of MacFarlane’s presence. MacFarlane

approached Reynolds from behind and, without touching Reynolds, quickly snatched the ten dollar
bill. Reynolds immediately spun around and faced MacFarlane. MacFarlane then stated, “That was
too easy,” and returned the ten dollar bill to Reynolds. As MacFarlane began to walk away, Reynolds
struck MacFarlane, splitting his lip. MacFarlane asked why he hit him. Reynolds replied, “You pissed
me off.” Shortly after this incident, the two interacted with a larger group of employees outside, and
the employees joked around and completed their break. The two men were together at an offsite
employee lunch some days later, and on multiple occasions after the incident Reynolds sought out
and voluntarily spoke with MacFarlane in MacFarlane’s work area.
Nevertheless, the incident was reported to the parties’ supervisor. During the ensuing investigation,
Revisiting Assault and Battery | 121

Reynolds reported to the supervisor that the incident was “nothing” and that any contact between
the parties was accidental. Reynolds was ultimately punished with a one-day suspension without pay
for striking another employee. Thereafter, Reynolds received medical treatment for anxiety, which
Reynolds explained to his physician had resulted from difficulties at work.
Nearly one year later, Reynolds filed a complaint against MacFarlane, alleging assault and intentional
infliction of emotional distress. At a bench trial, the parties stipulated to the dismissal of Reynolds’s
claim for intentional infliction of emotional distress, but Reynolds moved to amend his complaint
to include a claim for battery. The court granted Reynolds’s motion. After hearing the e vidence, the
trial court found MacFarlane “to be more credible in that [his] testimony was more consistent and
was corroborated by multiple parties.” Accordingly, the court based its findings of fact largely on
MacFarlane’s testimony. The trial court concluded that Reynolds had not met his burden of proof to
show that MacFarlane had committed an assault or a battery against him and then dismissed the case
with prejudice. Reynolds appeals.
I. Assault
Reynolds challenges the trial court’s conclusion that he faile d to prove assault. As an appellate court,
we give great deference to the trial court’s role as a fact finder and will review its findings of fact only
for clear error. [c] We review the trial court’s legal conclusions for correctness. [c] *758 To the e xtent
that Reynolds challenges the trial court’s findings of fact, he merely reargues the evidence in favor
of his position and does not adequately marshal the e vidence supporting the trial court’s findings as
required by our rules of appellate procedure. See Utah R.App. P. 24(a)(9) ( “A party challenging a fact
finding must first marshal all record evidence that supports the challenged finding.”). Because of this
failure to marshal, we accept the facts as articulated by the trial court. [c]
Under Utah law, “[a]n assault is an act ‘(a) … intending to cause a harmful or offensive contact with the
person of the other … or an imminent apprehension of such a contact’ by which ‘(b) … the other is …
put in such imminent apprehension.’” Tiede v. State, 915 P.2d 500, 503 n. 3 (Utah 1996) (omissions in
original) (quoting Restatement (Second) of Torts § 21 (1965)). The trial court concluded that Reynolds
could not prevail on his assault claim for three reasons. First, the trial court determined that Reynolds
failed to establish that he was in imminent apprehension of harmful or offensive contact because he
was not aware of MacFarlane’s presence until after he spun around to find out who had taken his
ten dollar bill. Second, the trial court ruled that even though MacFarlane intended to take the te n
dollar bill, MacFarlane did not intend to cause imminent apprehension of harmful contact in Reynolds
by doing so. Third, the trial court ruled that Reynolds suffered no injury or damages as a result of
MacFarlane’s actions. Reynolds challenges each of these conclusions. We ne ed address only Reynolds’s
first challenge be cause it is dispositive to our conclusion that the trial court correctly determined that
Reynolds failed to prove that an assault occurred.
Reynolds concedes that a plaintiff complaining of assault “must be aware of the defendant’s act.” See
W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 10, at 44 (5th ed.1984) (“Since the
interest involved is the mental one of apprehension of contact, it should follow that the plaintiff must
be aware of the threat of contact, and that it is not an assault to aim a gun at one who is unaware of

122 | Revisiting Assault and Battery

it.”). In Reynolds’s view, this requirement is satisfied in this case be cause he “was keenly aware of what
happened to him” “the moment the money was snatched from his hand.”
However, a plaintiff complaining of assault cannot be in apprehension of harmful or offensive contact
unless he is aware of such contact before the threat of the contact is accomplished or has dissipated.
“The

plaintiff’s subjective

recognition or apprehension that [he] is about to be

touche d in an

impermissible way is at the core of [an] assault claim.” 1 Dan B. Dobbs et al., The Law of Torts § 38, at
97 (2d ed.2011). As section 22 of the Restatement explains, “An attempt to inflict a harmful or offensive
contact or to cause an apprehension of such contact does not make the actor liable for an assault if the
other does not become aware of the attempt before it is terminated.” Restatement (Second) of Torts §
22 (1965); see also id. § 22 cmt. a (“[T]he defendant is not liable if his efforts to inflict the bodily contact
have be en abandoned or frustrated before the other is aware of them, since in such case the other is
not put in the required apprehension.”). Reynolds has directed us to no authority to the contrary.
As a result, we conclude that the trial court correctly ruled that Reynolds was not in imminent
apprehension of harmful or offensive contact because he was not aware of MacFarlane’s presence until
after MacFarlane took the te n dollar bill from Reynolds’s hand. … Accordingly, Reynolds did not prove
that MacFarlane committed an assault against him, and the trial court correctly dismissed his assault
claim.
II. Battery
Reynolds also challenges the trial court’s determination that he faile d to establish the elements of a
battery. We review *759 the trial court’s legal conclusions for correctness. [c] Utah has adopted the
Restatement (Second) of Torts to define the elements of the intentional tort of battery. Wagner v.
State, 2005 UT 54, ¶ 16, 122 P.3d 599. Consequently, an actor is liable for battery if “‘(a) he acts intending
to cause a harmful or offensive contact with the person of the other … or an imminent apprehension
of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results.’”
Id. (quoting Restatement (Second) of Torts § 13 (1965)).
In this case, the trial court found that MacFarlane did not touch Reynolds when he grabbed the
ten dollar bill from Reynolds’s hand. Because “MacFarlane ne ver touched or came into contact with
Reynolds,” the trial court concluded that Reynolds did not meet his burden of proof to show that a
1

harmful contact resulted from MacFarlane’s action. Reynolds asserts that the trial court’s conclusion
is erroneous because MacFarlane’s grabbing of an object—the ten dollar bill—from his hand was
sufficient contact with his person to constitute a battery.

1. The trial court explained,
Reynolds cited case law from other jurisdictions holding that the intentional snatching of an object from one’s
hand could constitute an offensive invasion of one’s person, so as to constitute an actual, physical contact.
However, the Court concludes that Utah has not so extended the definition of battery to include such actions
as actual contact. If the law in Utah were to be so e xtended, the Court’s findings would give rise to a battery by
MacFarlane.
Revisiting Assault and Battery | 123

For the intentional tort of battery, harmful or offensive contact “includes all physical contacts that
the individual either expressly communicates are unwanted, or those contacts to which no reasonable
person would consent.” Id. ¶ 51. But “it is not necessary that the plaintiff’s actual body be disturbe d.”
Restatement (Second) of Torts § 18 cmt. c (1965). Rather, “[p]rotection of the interest in freedom from
intentional and unpermitted contacts with the plaintiff’s person extends to any part of the body, or to
anything which is attached to it and practically identified with it.” W. Page Keeton et al., Prosser and
Keeton on the Law of Torts § 9, at 39 (5th ed.1984) (footnote omitted). “Thus, if all other requisites of a
battery against the plaintiff are satisfied, contact with the plaintiff’s clothing, or with a cane, a paper,
or any other object held in the plaintiff’s hand, will be sufficient” to support a battery claim because
the “interest in the integrity of [a] person includes all those things which are in contact or connected
with the person.” Id. § 9, at 39–40 (footnotes omitted); *** Fisher v. Carrousel Motor Hotel, Inc., 424
S.W.2d 627, 629 (Tex.1967) (“The intentional snatching of an object from one’s hand is as clearly an
offensive invasion of his person as would be an actual contact with the body.”). But see Workman v.
United Fixtures Co., 116 F.Supp.2d 885, 896–97 (W.D.Mich.2000) (concluding that even if the defendant
removed a paper from the plaintiff’s hand, “nothing in the record suggests that [the defendant’s]
alleged actions amounted to an offensive contact battery”). We consider the above authorities as
persuasive and not inconsistent with our supreme court’s battery analysis.
In this case, MacFarlane’s act of taking the ten dollar bill held loosely in Reynolds’s hand was sufficient
contact to constitute the contact element of battery, see Wagner, 2005 UT 54, ¶ 16, 122 P.3d 599,
notwithstanding the fact that MacFarlane did not touch Reynolds’s body. When held in his hand, the
ten dollar bill was connected to Reynolds such that when MacFarlane snatched the bill from Reynolds,
MacFarlane’s act resulted in offensive contact with Reynolds’s person. The intent element of battery
was also met in this case be cause *760 the trial court found that MacFarlane intended to take the bill
from Reynolds’s hand when he acted. See id. ¶ 29 (“[T]he only intent required to commit a battery is the
intent to make a contact, not an intent to harm, injure, or offend through that contact.”). Accordingly,
we conclude that the trial court erred in dismissing Reynolds’s battery claim because the court’s
factual findings establish both elements of the claim.
The trial court determined that Reynolds suffered no damages as a result of the August 5, 2009
incident. The Utah Supreme Court has explained that “[a] harmful or offensive contact is simply
one to which the recipient of the contact has not consented either directly or by implication.” Id. ¶
51. “[H]armful or offensive contact is not limited to that which is medically injurious or perpetrated
with the intent to cause some form of psychological or physical injury.” Id. (emphasis added). Instead,
harmful or offensive

contact “includes all physical contacts that the individual either expressly

communicates are unwanted, or those contacts to which no reasonable person would consent.” Id.
Moreover, “[c]ommon law battery does not require that the nonconsensual contact be injurious.
Rather, proof of an unauthorized invasion of the plaintiff’s person, even if harmless, entitles him to at
least nominal damages.” Lounsbury v. Capel, 836 P.2d 188, 192–93 (Utah Ct.App.1992) (emphasis added);
see also id. at 196 (“[A plaintiff] need not prove injury to sustain his battery claim; if he proves no
more than the ‘offense’ of the nonconsensual touching, he is entitled to nominal damages.”); Keeton
et al. § 9, at 41 (“[T]he defendant is liable not only for contacts which do actual physical harm, but
also for those relatively trivial ones which are merely offensive and insulting.”). “Damages for pain,
suffering, ‘psychological problems’ and the like, however, may … be recovered only to the e xtent that
124 | Revisiting Assault and Battery

[the plaintiff] proves they were a proximate result” of the nonconsensual touching. Lounsbury, 836
P.2d at 196.
Here, the trial court found that “no injury resulted to Reynolds as a direct and proximate cause
of MacFarlane’s actions.” Thus, the trial court ruled that Reynolds’s claimed damages—the one-day
suspension and his medical issues following the break-room incident with MacFarlane—were not
proximately caused by MacFarlane’s act. Reynolds has not effectively challenged this ruling on appeal.
However, because we have concluded that MacFarlane committed a battery, Reynolds is entitled to
nominal damages. See id. at 192–93 (“[U]nauthorized invasion of the plaintiff’s person, even if harmless,
entitles him to at least nominal damages.”). Accordingly, we remand to the trial court for an award of
nominal damages to Reynolds for battery.
III. Attorney Fees
¶ 18 MacFarlane requests an award of attorney fees incurred on appeal, pursuant to rule 33 of the Utah
Rules of Appellate Procedure. MacFarlane argues that Reynolds’s appeal in this matter is frivolous and
asserts that he is therefore entitled to attorney fees.
¶ 19 “[I]f the court determines that a[n] … appeal taken under these rules is either frivolous or for delay,
it shall award just damages, which may include … reasonable attorney fees, to the prevailing party.”
Utah R.App. P. 33(a). A frivolous appeal “is one that is not grounded in fact, not warranted by existing
law, or not based on a good faith argument to extend, modify, or reverse existing law.” Id. R. 33(b).
Because we reve rse the trial court’s ruling on one of the issues raised, Reynolds’s appeal is clearly not
frivolous. We therefore de cline to award MacFarlane the attorney fees that he has incurred on appeal.
In sum, the trial court correctly concluded that Reynolds did not establish the elements of assault,
because

Reynolds was not aware

of MacFarlane’s imminent contact. We

affirm the

dismissal of

Reynolds’s assault claim, reve rse the dismissal of Reynolds’s battery claim, and remand to the trial
court for judgment in favor of Reynolds on his battery claim and for an award of nominal damages.
Note 1. Given that Reynolds was awarded only nominal damages, do you imagine it was still worth the
lawsuit? Why or why not?
Note 2. Is it an assault to point a toy gun at someone’s head? How about a real gun that is unloaded?
How about a loaded gun that one brandishes in the air near another person’s head, carelessly, saying,
“don’t worry, I’m not going to shoot you”? Ground your answers in the elements of assault.
Note 3. An early case held that it was correct to find an assault had been committed when a defendant
aimed an unloaded gun at the plaintiff and pulled the trigger twice, frightening the victim who was
unaware the gun was unloaded. The court explained its ruling thus:
One of the most important objects to be attained by the enactment of laws and the institutions
of civilized society is, each of us shall feel secure against unlawful assaults. Without such
security society loses most of its value. Peace and order and domestic happiness, inexpressibly
more precious than mere forms of government, cannot be enjoyed without the se nse of perfect
security. We have a right to live in socie ty without being put in fear of personal harm. But
Revisiting Assault and Battery | 125

it must be a reasonable fear of which we complain. And it surely is not unreasonable for a
person to entertain a fear of personal injury, when a pistol is pointed at him in a threatening
manner, when, for aught he knows, it may be loade d, and may occasion his immediate de ath.
The business of the world could not be carried on with comfort, if such things could be done
with impunity. Beach v. Hancock, 27 N.H. 223, 229–30 (1853).
Note 4. Who should decide

whe ther a person’s fear, or “anticipation of imminent bodily harm”

is reasonable? Is this an objective

or subje ctive

standard, descriptively and which should it be,

normatively, in your view?
Note 5. Consider Dean Nelson’s earlier application of the “thin skull plaintiff” doctrine to women
and people of color. Are there normative justifications for tailoring harms to account of societal
imbalances, such as sexism, racism, and other structural inequalities? How about arguments against
doing so because of the value of not unsettling the law? Is there a way to be anti-racist, or progressive
in other respects, without such revisiting standards and doctrines? What does that look like and what
are the values, and systemic costs, of any such approach?
Note 6. Reynolds cited the ne xt case, Fisher, for the rule that offensive contact with something
touching the plaintiff’s body can be a battery, even without the defendant’s touching the body directly.
Consider the work the rule does in this context.

Fisher v. Carrousel Motor Hotel, Inc. Texas Supreme Court (1967)
(424 S.W. 2d 627)
This is a suit for actual and exemplary damages growing out of an alleged assault and battery. The
plaintiff Fisher was a mathematician with the Data Processing Division of the Manne d Spacecraft
Center, an agency of the

National Aeronautics and Space

Agency, commonly called NASA, near

Houston. The defendants were the Carrousel Motor Hotel, Inc., located in Houston, the Brass Ring
Club, which is located in the Carrousel, and Robert W. Flynn, who as an employee of the Carrousel
was the manager of the Brass Ring Club. Flynn died before the trial, and the suit proceeded as to
the Carrousel and the Brass Ring. Trial was to a jury which found for the plaintiff Fisher. The trial
court rendered judgment for the defendants notwithstanding the verdict. The Court of Civil Appeals
affirmed. 414 S.W.2d 774. The questions before this Court are whe ther there was evidence that an
actionable battery was committed, and, if so, whether the two corporate defendants must respond in
exemplary as well as actual damages for the malicious conduct of Flynn.
The plaintiff Fisher had been invited by Ampex Corporation and Defense Electronics to a one day’s
meeting regarding telemetry equipment at the Carrousel. The invitation included a luncheon. The
guests were asked to reply by telephone whether they could attend the luncheon, and Fisher called in
his acceptance. After the morning session, the group of 25 or 30 guests adjourned to the Brass Ring
Club for lunch. The lunche on was buffet style, and Fisher stood in line with others and just ahead of
a graduate student of Rice University who testified at the trial. As Fisher was about to be served, he
126 | Revisiting Assault and Battery

was approached by Flynn, who snatched the plate from Fisher’s hand and shouted that he, a Negro,
could not be *629 served in the club. Fisher testified that he was not actually touched, and did not
testify that he suffered fear or apprehension of physical injury; but he did testify that he was highly
embarrassed and hurt by Flynn’s conduct in the presence of his associates.
The jury found that Flynn ‘forceably dispossessed plaintiff of his dinner plate’ and ‘shouted in a loud
and offensive manner’ that Fisher could not be served there, thus subjecting Fisher to humiliation and
indignity. It was stipulated that Flynn was an employee of the Carrousel Hotel and, as such, managed
the Brass Ring Club. The jury also found that Flynn acted maliciously and awarded Fisher $400 actual
damages for his humiliation and indignity and $500 exemplary damages for Flynn’s malicious conduct.
The Court of Civil Appeals held that there was no assault because there was no physical contact and
no evidence of fear or apprehension of physical contact. However, it has long been settled that there
can be a battery without an assault, and that actual physical contact is not necessary to constitute a
battery, so long as there is contact with clothing or an object closely identified with the body. 1 Harper
& James, The Law of Torts 216 (1956); Restatement of Torts 2d, ss 18 and 19. In Prosser, Law of Torts 32
(3d Ed. 1964), it is said:
‘The interest in freedom from intentional and unpermitted contacts with the plaintiff’s person
is protected by an action for the tort commonly called battery. The protection extends to any
part of the body, or to anything which is attached to it and practically identified with it. Thus
contact with the plaintiff’s clothing, or with a cane, a paper, or any other object held in his
hand will be sufficient; * * * The plaintiff’s interest in the integrity of his person includes all
those things which are in contact or connected with it.’
Under the facts of this case, we have no difficulty in holding that the intentional grabbing of plaintiff’s
plate constituted a battery. The intentional snatching of an object from one’s hand is as clearly an
offensive invasion of his person as would be an actual contact with the body. ‘To constitute an assault
and battery, it is not necessary to touch the plaintiff’s body or even his clothing; knocking or snatching
anything from plaintiff’s hand or touching anything connected with his person, when, done is an
offensive manner, is sufficient.’ Morgan v. Loyacomo, 190 Miss. 656 (1941).
Such holding is not unique to the jurisprude nce of this State. In S. H. Kress & Co. v. Brashier, 50 S.W.2d
922 (Tex.Civ.App.1932, no writ), the defendant was held to have committed ‘an assault or trespass upon
the person’ by snatching a book from the plaintiff’s hand. The jury findings in that case were that the
defendant ‘dispossessed plaintiff of the book’ and caused her to suffer ‘humiliation and indignity.’
The rationale for holding an offensive contact with such an object to be a battery is explained in 1
Restatement of Torts 2d s 18 (Comment p. 31) as follows:
Since the essence of the plaintiff’s grievance consists in the offe nse to the dignity involved
in the unpermitted and intentional invasion of the inviolability of his person and not in any
physical harm done to his body, it is not necessary that the plaintiff’s actual body be disturbe d.
Unpermitted and intentional contacts with anything so connected with the body as to be
customarily regarded as part of the other’s person and therefore as partaking of its inviolability
Revisiting Assault and Battery | 127

is actionable as an offensive contact with his person. There are some things such as clothing
or a cane or, indeed, anything directly grasped by the hand which are so intimately connected
with one’s body as to be universally regarded as part of the person.’
*630 We hold, therefore, that the forceful dispossession of plaintiff Fisher’s plate in an offensive
manner was sufficient to constitute

a battery, and the

trial court erred in granting judgment

notwithstanding the verdict on the issue of actual damages.
In Harned v. E-Z Finance

Co., 151 Tex. 641 (1953), this Court refused to adopt the

‘new tort’ of

intentional interference with peace of mind which permits recovery for mental suffering in the
absence of resulting physical injury or an assault and battery. This cause of action has long been
advocated by respectable writers and legal scholars. See, for example, Prosser, Insult and Outrage, 44
Cal.L.Rev. 40 (1956); Wade, Tort Liability for Abusive and Insulting Language, 4 Vand.L.Rev. 63 (1950);
Prosser, Intentional Infliction of Mental Suffering: A New York, 37 Mich.L.Rev. 874 (1939); 1 Restatement
of Torts 2d s 46(1).
However, it is not necessary to adopt such a cause of action in order to sustain the verdict of
the jury in this case. The Harned case recognized the well established rule that mental suffering is
compensable in suits for willful torts ‘which are recognized as torts and actionable independently
and separately from mental suffering or other injury.’ 254 S.W.2d at 85. Damages for mental suffering
are recoverable without the ne cessity for showing actual physical injury in a case of willful battery
because the basis of that action is the unpermitted and intentional invasion of the plaintiff’s person
and not the actual harm done to the plaintiff’s body. Restatement of Torts 2d s 18. Personal indignity
is the essence of an action for battery; and consequently the defendant is liable not only for contacts
which do actual physical harm, but also for those which are offensive and insulting. Prosser, supra;
Wilson v. Orr, 210 Ala. 93 (1923). We hold, therefore, that plaintiff was entitled to actual damages for
mental suffering due to the willful battery, even in the absence of any physical injury.
*** [Editor’s note: the discussion of damages and the corporations’ vicarious liability for the actions
of Flynn are omitted for the sake of brevity.]
After the jury verdict in this case, counsel for the plaintiff moved that the trial court disregard the
answer to issue number eight (no authorization or approval of Flynn’s conduct on the occasion in
question) and for judgment upon the verdict. The trial court erred in overruling that motion and in
entering judgment for the defendants notwithstanding the verdict; and the Court of Civil Appeals
erred in affirming that judgment.
The judgments of the courts below are reversed, and judgment is here rendered for the plaintiff for
$900 with interest from the date of the trial court’s judgment, and for costs of this suit.
Note 1. The rule e xpressed in Fisher, that rudely or angrily removing a plate from someone’s hands
is a battery reflects what some courts have referred to as the doctrine of extended personality.
If something is touching one’s body—such as a purse, backpack, or headphones, or if one’s body is
closely connected to or interwoven with something (such as a jockey riding a horse or a person sitting
on a stool or swinging on a swing), then interference with the thing or animal can constitute battery

128 | Revisiting Assault and Battery

so long as the other elements are me t. What facts in Fisher would you change to make this action fail
to be a battery, descriptively? How about normatively, if the answer differs?
Note 2. The court in Fisher declined to find IIED, perhaps because it could find a technical battery
had happened, and it could justify awarding damages in connection with the mistreatment by an
employee. What do you think of the use of battery as a tort here? Is it inappropriate (in potentially
twisting the concept of battery to offer redress on these facts)? If you think it is appropriate it is
sufficient (in actually redressing the victim’s harms)? Should an action have been allowed for IIED?
Note 3. The general rule is that tort law does not permit recovery for mere insults or rudeness; to
do so would turn the courts into over-burdened policers of manner and feelings. But in some cases,
the reluctance to allow a claim for IIED may seem more or less satisfying, given the facts. See Dawson
v. Zayre De p’t Stores, 346 Pa. Super. 357, 360 (1985) (stating “we believe that this conduct merely
constitutes insulting namecalling from which no recovery may be had” and distinguishing Fisher and
other cases, in which service was denied or customers asked to leave the store from a case in which
an employee called a customer an extremely harmful racial epithet when in an argument over a layaway ticket). Richard Delgado, Words that Wound: A Tort Action for Racial Insults, Epithets and NameCalling, 17 Harv. C.R.-C.L. L. Rev. 133 (1982) argued forcefully in favor of the creation of a special tort
to address hateful or racist speech but his calls have gone unhe eded). What benefits would flow from
the creation of such a tort? What costs or challenges would it create?

Check Your Understanding – Set 15

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=39#h5p-34

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=39#h5p-35

Revisiting Assault and Battery | 129

9. False Imprisonment
Elements
• action with
• the intention to confine someone to a defined or bounded place
• that directly or indirectly causes actual and unlawful confinement
• and harm, or awareness of the confinement

Noguchi v. Nakamura, Intermediate Court of Appeals of Hawai’i (1982)
(2 Haw. App. 655)
This is an appeal from an order granting a directed verdict on a claim of false imprisonment. We
reverse. The complaint herein asserted two claims for relief: one based on negligence and one on false
imprisonment. The court below directed a verdict on the false imprisonme nt claim and the jury found
for the appellee on the negligence claim.
Basically, appellant testified that she and appellee had be en girlfriend and boyfriend. She had come to
the conclusion that she did not wish to go out with him anymore. On the day in question, he came to
see her and asked her to go with him on a date that evening. She refused. After some conversation, he
asked her to at least go to the store with him and she consented on the condition, which he agreed
to, that he would bring her right back. She then entered his car and they proceeded to the store and
returned, stopping in front of her house. She was seated in the car with the car door open when he
suddenly drove off. At some point thereafter, she fell, was pushed or jumped from the car, sustaining
the injuries complained of. [***]
Appellee contends, however, that since appellant originally entered the car voluntarily, some threat
against her to prevent her leaving must have be e n made or she was at least under an obligation when
the car was stopped in front of her parents’ home to e xpress a refusal to go further. We do not regard
such to be the law. She had refused to go anywhere on the day in question with the appellee but to
the store and back. She was back; she was in front of her parents’ house , and she had the car door
open when appellee suddenly started off. A jury could well have found from her testimony that her
consent to go anywhere with the appellee on the day in question was limited to going to the store and
back; that she had previously expressly told him she would not go out with him that evening, so that
the limited consent had expired; and that her having the door ope n in the stoppe d car in front of her
parents’ home reindicated her lack of consent to any further movement.
The case of Faniel v. Chesapeake & Potomac Telephone Co., 404 A.2d 147 (D.C.App.1979), cited by
appellee is not on point. There, the claimant had consented to go to he r home in the car. In the course
of that journey after a stop was made which she had not anticipated, she changed her mind without
130 | False Imprisonment

expressing the same. But as the court pointed out in that case: Of course, if the defendant goes beyond
the implie d consent, and does a substantially different act, he will be liable . Se e Prosser, supra, at 104.
Whether the assent given was broad enough to cover the invasion inflicted is a question of fact to be
determined by the jury in doubtful cases. 404 A.2d at 153. That is our case.
[***] [T]here was sufficient evidence to go to the jury on the claim of false imprisonment. Because of
our disposition of the question of the sufficiency of the e vidence, we do not reach the other errors
alleged.
Reversed and remanded for a new trial.
Note 1. What does it mean for the lower court to have directed the verdict? What is the status of the
negligence count?
Note 2. For what purpose is the court drawing on the implied license doctrine?
Note 3. The court relays the facts with a curious range of possibility regarding what actually happened:
“At some point thereafter, she fell, was pushed or jumped from the car.” Why do you think this is so?
Do you think it is important (from the parties’ perspectives) which occurred? What bearing might it
have on the tort of false imprisonment or on a general understanding of the context for the parties’
actions?
Note 4. False imprisonment is a tort in which there is frequently a power asymmetry of some kind.
The tort, after all, seeks to prevent people from limiting others’ freedom of movement. That someone
is capable of limiting the freedom of another presupposes particular sorts of power, strength, status
or opportunity. How do you imagine this power asymmetry might play out in fact patterns that recur
in the case law? What patterns would you expect to see regarding who is likely to be bringing false
imprisonment actions, against whom and why?

Ali v. Margate, United States District Court, S.D. Florida (2011)
(2011 WL 4625372)
Plaintiff Shanaz Ali (“Ali”) filed this action against Defendant Margate School of Beauty, Inc. (“Margate
School”), alleging sex discrimination and sexual harassment in violation of Title IX, 20 U.S.C. § 1681
et seq., which prohibits discrimination on the basis of gender in any education program or activity
receiving Federal financial assistance. Ali’s Amended Complaint also contains claims for assault,
battery, and false imprisonment against Defendant Stanley Barnett (“Barnett”), the owner of Margate
1

School. Ali was a student at Margate School, a private trade school, from May of 2010 until late in 2010

1. By separate order, the Court has previously addressed Plaintiff Stephanie Groh’s claim for retaliation in Count II [DE 53].
False Imprisonment | 131

or early in 2011. There is no dispute that Title IX applies to Margate School. After the parties engaged
in discovery, Defendants moved for summary judgment as to Ali’s claims.

2

Ali first registered to attend Margate School’s massage therapy certification class in late May of 2010.
She me t Defendant Barnett that day after he personally approved her request for discounted tuition.
Barnett asked her where she was from, and after she stated she was from Trinidad, he told he r he was
British and played cricket. After she began day classes in June of 2010, Barnett approached her in the
hallway and said, “You are the girl … who was in my office before when we started school. So, you did
3

start?” Barnett asked her if she played cricket, to which Ali replied, “sometimes.” Barnett then stated
that “we could play cricket.” Barnett put his hand on Ali’s right hand or forearm for a few seconds when
he made this last statement. A week later, Barnett approached her in the hallway, touched her hand or
shoulders and moved close to her and asked how she was doing. This contact made Ali uncomfortable.
Between late June and e arly November, there were three to five instances of Barnett approaching
her in the hallway and touching her in a similar manner. While Ali stated that she trie d to avoid him,
she testified that she changed her class schedule from day classes to night classes because of her
babysitting situation.
On Monday evening, November 8, 2010, Ali was in the hallway before class when Barnett approached
her, asked how she was doing, tapped her shoulder and hugged her. In her errata sheet, Ali adds that
Barnett said she was extremely attractive and wanted to help her with her studies. Barnett then said
that “Let’s see if we can help each other out.” Ali Deposition at 36–37. Ali did not know what he was
referring to as the two went into his office and he close d the door. Barnett sat behind his desk with
Ali across from him. Id. at 37. Barnett said “Let’s see if we can help each other out, you know, I can
probably do something for you. You can do something for me.” Ali felt trapped and stuck and thought
if she walked out she would not be able to go to school anymore. Id. at 38. Barnett then said that “I’m
the owner of the school, you know, I can pay your tuition. I can pay your weekly amount if you, you
know, could do something…. I can pay your stuff and you can, you know, give me a favor, do me a
favor.” Ali assumed he me ant a sexual favor, and stated that “you shouldn’t even be saying that. You’re
married, you know, you have a kid. I have kids.” Barnett then said, “Well, you know, everybody does it
now.” Id. at 38–39. Ali declined the proposition, saying “I don’t want to do anything like that.” Id. at 39.
Barnett said “that he liked Trinidadian women and that he could do anything because he owned the
school.” Barnett then asked if Ali had a friend who would do it. Ali deposition at 39. Ali said no and left
his office. Id. at 40. In her Errata Sheet, she alleges that Barnett followed her into the hallway, touching
her and telling her she was attractive, conduct that frightened Ali because she feared that she might
be expelled or have her grades adversely affected.
*2 Teacher and co-Plaintiff Stephanie Groh then saw Ali crying and shaking in the hallway. Deposition
of Stephanie Groh at 68 [DE 34–4]; Deposition of Shanaz Ali at 42 [DE 33–4]. Upon reaching her, Ali
explained that Defendant Barnett had just propositioned her in his office, and she did not know what
to do. Ali deposition at 42. Groh told Ali that she would take care of it. Ali did not go to class and

2. Ali did not allege a claim under Title IX against Defendant Barnett. Therefore the Court does not address the individual
liability issue discussed by Defendants in their motion.
3. Barnett may have stated, “You’re the Trinidadian girl that was enrolling a couple of weeks ago.” Ali deposition at 22.
132 | False Imprisonment

went home. She came back to school the ne xt day to speak with Stephanie Groh. Once Ali le arned that
Groh had been fired, Ali never went back to the school. Ali ne ver told any other student, teacher, or
administrator about the incident.
Barnett denies the November 8 incident ever took place. Deposition of Stanley Barnett at 51. Barnett
also denied ever making the comment that he was attracted to Trinidadian women. Id. at 43. He
stated that if an instructor or administrator offered a quid pro quo for sexual favors to a student, such
conduct would be investigated as a possible violation of Margate School’s sexual harassment policy.
Margate School’s sexual harassment policy directs students to report any such incidents to the
“Director of the School or the Office Manager.” Sexual Harassment Policy [page 13–14 of DE 33–2].
While Miriam Tirado was the Director of the School, it is not clear who the “Office Manager” was at the
time of the November 8 incident. The policy then states that if a verbal complaint to the Director has
proven ineffective, or you are unable to complain to the Director, then students are to file a complaint
through Margate School’s grievance procedure. The procedure starts with a student first notifying her
instructor either verbally or in writing, and if not resolved, then the student is to notify the Director of
Student Affairs. Handbook at p. 9 [DE 33–2]. Other than telling Groh, there is no e vidence that Plaintiff
Ali followed the procedures spelled out in the policy. [***]
B. Title IX Discrimination—Quid Pro Quo
Both sides argue that Title VII case law should be use d as the basis for analysis of a motion for
summary judgment on a Title IX claim. Plaintiff’s claim under Title IX can be maintained under two
different theories, both of which Plaintiff asserts in this case. A plaintiff can prove a violation by
either showing that the harassment culminated in a “tangible employment action” or that she suffered
“severe or pervasive” conduct. [c] As applied to the Title IX area, Plaintiff Ali must show that she was
deprived of some benefit or suffered some tangible adverse action, such as decreased grades. [c]
Although Ali testified that she was afraid something adverse to her grades would happen to her after
she rejected Barnett’s quid pro quo offer, there is no e vidence that any denial of any educational
benefit or any adverse educational action ever occurred. Ali’s grades did not suffer as a result of
her rejection of Barnett’s alleged advances. Ali suggests that she suffered some sort of constructive
discharge be cause she was afraid to return to school. However, the facts remain that Ali did not return
to school on her own choosing. There is no e videntiary basis in the record to support the claim that
she suffered a tangible e ducational action or was denied any benefit on account of her sex. Thus,
the Court concludes that there are no dispute d issues of material fact concerning the quid pro quo
harassment claim. Summary judgment in favor of Margate School on this part of Count I is therefore
appropriate.
C. Title IX Discrimination—Hostile Work Environment
[***] Unde r the hostile work environment theory, “[f]or sexual harassment to be actionable, it must
be sufficiently severe or pervasive ‘to alte r the conditions of [the victim’s] employment and create
an abusive

working environment.’” [cc] A plaintiff establishes a prima facie case

of hostile

work

environment by showing: (1) the Plaintiff belongs to a protected group; (2) she was subjected to
unwelcome se xual harassment; (3) the harassment complained of was based on sex; (4) the harassment
False Imprisonment | 133

complained of was sufficiently severe or pervasive to alte r the conditions of her employment and
create an abusive working environment; and (5) the employer is liable. [cc]. [***]
For purposes of the summary judgment motion, it is clear that Plaintiff testified that the conduct was
unwelcome, sexual in nature, and related to her gender. Defendant argues that Plaintiff cannot show
that the alleged harassment, under an objective standard, was sufficiently severe or pervasive to alter
the conditions of Plaintiff’s education and create an abusive environment. Defendant relies upon the
Mendoza opinion, where repeated vulgar conduct was deemed not sufficiently pervasive but merely
rude.
In this action, although Ali meets the

subje ctive

component that the

harassing conduct was

sufficiently severe or pervasive to alter an employee’s terms or conditions of employment, Ali has not
met the obje ctive component. The Court first notes that the various out of district cases cited by
Plaintiff involved alleged victims aged 17 and younger. Plaintiff Ali was 24 years old during the relevant
period in this action. Although Barnett was substantially older and was the owner of the trade school
in question, his slight touching of Plaintiff’s hand or arm three to five times in open hallways over a
five month period, combined with general questions about how Plaintiff was doing, and culminating
in one instance in his office where he alle gedly asked for sexual favors in return for free tuition, do
not rise the level of sufficiently severe or pervasive conduct under Eleventh Circuit case law. [***]
[T]his Court concludes that even taking all disputed facts in Plaintiff Ali’s favor, summary judgment is
appropriate in that Plaintiff has failed to show sufficiently severe or pervasive conduct that meets her
burden.

4

D. State Law Claims
Defendant Barnett also moves for summary judgment on Plaintiff’s state law claims against him.
Taking first the claim for false imprisonment, this tort is defined as the unlawful restraint of a person
against his will. [c] The gist of false imprisonment is the unlawful detention of the plaintiff and the
deprivation of her liberty. “A plaintiff in a false imprisonment action need not show that force was
used in the de tention or that he or she orally protested to demonstrate the de tention was against his
or her will…. However, a plaintiff alleging false arrest must show the restraint was unreasonable and
unwarranted under the circumstances.” A plaintiff is not restrained when there is a reasonable me ans
of escape, which is apparent or known to the person. [c]
In this action, Plaintiff Ali has failed to show that any restraint was used in that she agreed to go with
Barnett into his office and she could have left his office at any time. In fact, Ali did leave Barne tt’s office
prior to the conversation being over, as Barnett allegedly followed her into the hallway to ask her to
reconsider his offer. Although the door to the office was closed while Plaintiff was inside the office
with Barnett, and Plaintiff was subjectively afraid of the consequences of her leaving, a reasonable
means of escape was apparent. The Court therefore concludes that Plaintiff has failed to prove as a
matter of law that the tort of false imprisonment was committed.

4. Based upon this conclusion, the Court does not address the employer liability prong regarding the adequacy of the
sexual harassment policy and whether Ali unreasonably failed to take advantage of the policy.
134 | False Imprisonment

Turning next to the assault claim, under Florida law, an assault is any intentional, unlawful threat by
word or act to do violence to another, coupled with an apparent ability to do so, and doing some act
which creates a well-founded fear that such violence is imminent. [cc] Based upon the record as a
whole, there is no e vidence that any violence was ever imminent or threatened by Barnett during the
instances that he touche d Ali, nor during the alleged proposition in his office. There is no construction
of the facts in the record by which one could conclude that Ali had a well-founded fear that any
violence was imminent. Therefore, summary judgment in favor of Barnett on the assault claim is
appropriate.
*6 Finally, turning to the battery claim, under Florida law, a battery occurs when a person “actually
and intentionally touches or strikes another person against the will of the other.” [cc] In this case,
Ali testified that Barnett touched her several times against her will, causing her to be uncomfortable.
While Defendant argues that Barnett lacked the intent to cause harm or that Ali never told Barnett
that the touching was unwelcome, the Court must conclude at the summary judgment stage that
Plaintiff has set forth disputed issues of material fact that preclude the granting of summary judgment
on her battery claim.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Defendants’ Motion for Summary Final Judgment [DE 33] is hereby GRANTED in part as to
Counts I [Title IX Violation: Harassment/Discrimination against Ali], IV [False Imprisonment
Claim] and the assault claim in Count III, and DENIED as to the battery claim in Count III;
2. Defendants’ Motion for Summary Final Judgment [DE 32] is hereby DENIED as a duplicative
motion.
Note 1. Ali v. Margate builds on torts you’ve se en—assault, battery and false imprisonment—to add
a federal claim for discrimination in the

workplace
. While employee
s cannot sue employers for

negligent injuries sustained on the job—since workers’ compensation exists to address those—they
may sue for intentional torts as you have le arned in Villa v. Derouen. In addition, employees can
report employers using various institutional and industry-specific mechanisms. Finally, they can bring
lawsuits of various kinds, but these are usually the le ast good option. Employment discrimination and
toxic workplace cases are notoriously difficult to win and often not worth the professional stress and
reputational costs, to say nothing of the legal fees that may be involved with lengthy litigation. Why
do you think the bar for recovery is so high? How might you frame your answer in terms of tort law’s
purposes?
Note 2. In light of the momentum created by the “metoo” movement, cases such as these could
become less frequent if employers respond meaningfully, perhaps bolstering their training,
supervision and reporting protocols or taking other steps to improve their workplace environment.
Cultural factors play a role, in addition; if victims fear retaliation or routinely face doubt when raising
allegations of harassment or misconduct, reporting continues to be a worse alternative than putting
up with it or leaving the working environment, where that’s possible. To what extent do you think
such conduct ought to fall to the tort system to regulate? Also, when should bad behavior be de emed
so bad that it’s beyond an acceptable range and be comes something “extreme and outrageous” (along
False Imprisonment | 135

the lines of the tort of outrage or intentional infliction of emotional distress)? Should the prevalence
of discriminatory behavior make it harder to recover because of the widespread nature of the bad
behavior? Does societally prevalent conduct require more generalized legal measures, that is, other
than tort litigation which is particularized to individuals?
Note 3. In some instances, civil rights violations do not or should not amount to torts violations.
Martha Chamallas, Discrimination and Outrage: The Migration from Civil Rights to Tort Law, 48 Wm.
& Mary L. Rev. 2115 (2007) (exploring the interplay between the domains of civil rights laws and torts,
critiquing the “gap-filler” approach and advocating for a reconceptualization of the tort of outrage),
https://scholarship.law.wm.edu/wmlr/vol48/iss6/2/
What risks and opportunities can you imagine arising from the way the two areas of law either overlap
or remain distinct from each other?
Note 4. From the disposition of this case, what would you assume the plaintiff sought? From her
complaint, here was the request:
[T]he Plaintiff Ali demands judgment against the Defendants Margate and Barne tt, for damages
in excess of $15,000.00, costs, interest, and such other and further relief that is available
under the law and also seeks exemplary and punitive damages against the Defendants for the
intentional wanton and willful acts of Defendant Barnett.
Ali alleges that Barnett’s conduct caused her to drop out of beauty school that she had paid tuition to
attend. In light of that allegation, does the nature and amount of the remedy sought seem appropriate?
What do you observe about the remedies tort law most commonly awards?
Note 5. Do the plaintiff’s gender and nationality or race se em relevant to the substantive claims, in
your view? Whichever way you answered, do you think they might be relevant to the legal disposition
of the case? What do you observe about the institutional context (a beauty school) and the fact that
one of the school’s teachers, Stephanie Groh, joined the suit?

Talcott v. National Exhibition Co., Supreme Court, Appellate Division,
2d, NY (1911)
(144 A.D. 337)
The defendant appeals from a judgment of a Trial Term of the Supreme Court in Westchester county,
entered upon a verdict of a jury in an action for false imprisonment, and from an order denying a
motion for a new trial. The facts are as follows:
On the morning of the 8th of October, 1908, the plaintiff went into the inclosure of the defendant
in the city of New York to buy some reserved seats for a baseball game which was to be held there
in the afternoon of that day. These seats were sold at a number of booths within the inclosure. The
*338 plaintiff was unsuccessful in his quest, as all the reserved seats had been sold. He trie d to leave
136 | False Imprisonment

the inclosure through some gates used generally for ingress and exit. A considerable number of other
persons were trying to leave the inclosure through the same gates at the same time . It appears that
the base ball game which was to take place was one of very great importance to those interested in
such games, and a vast outpouring of people were attracted to it. Many thousands of these came
early in the day to seek admittance to the ball grounds, and the result was that the various gates used
generally for entrance or exit were thronged with a dense mass of people coming in.
The plaintiff was prevented by the servants of the defendant from attempting to pass out through this
throng, and as a result of this interference he was detained in the inclosure for an hour or more, much
to his annoyance and personal inconvenience. The plaintiff and those similarly situated made many
attempts to get out through these gates, and in the restraint put upon them to defeat their efforts
they were subje cted to some hauling and pushing by the defendant’s special policemen. Finally the
plaintiff and the others were taken through a club house within the inclosure and allowed to go out
through the entrance to the club house to the street.
Concededly the plaintiff had a legal right to leave the inclosure, and the defendant had no legal right
to detain him therein against his will. But the right of each had corresponding duties. A temporary
interference with the plaintiff’s legal right of egress could be justified as a proper police me asure, if
the plaintiff sought to exercise such right under circumstances likely to create disorder and danger.
Assuming, however, that the defendant was justified in preventing the plaintiff from passing out
through the gates in question, it should have directed him to pass out through some other means
of exit, if there were any. The plaintiff told the agents of the defendant of his desire to get out, but
received no directions or suggestions how to get out. The defendant claims that the plaintiff might
have gone out through other gates in another portion of the field used for the entrance of motor
cars and other vehicles; but the plaintiff swears that he did not know of the other gates, and there
is no proof that his attention was called to *339 them in any way when he and the others sought
to go out. He got out in the end, not through the gates for vehicles, but through the club house, on
the permission and direction of the defendant. Granting that the restraint placed upon the plaintiff
in preventing his going out through the gateways through which he sought exit was justifiable as a
police me asure, yet the defendant owed him an active duty to point out the other existing methods of
egress. It could not stand idly by, and simply detain and imprison the plaintiff against his will.
We se e no reason to interfere with the verdict of the jury in its finding that the plaintiff’s detention was
unjustifiable unde r the circumstances. The damages awarded were in the sum of $500. The plaintiff
proved no special damage, nor was he obliged to. All damages awarded in cases of false imprisonment
partake to some e xtent of “smart moneys,” and the sum awarded here is not so e xcessive as to justify
interference on our part.
The judgment and order are affirmed, with costs.
Note 1. Courts take different approaches to identifying what constitutes “unlawful confinement.”
There is broad consensus that when a reasonable me ans of exit exists and a person does not take it,
there is no confinement. Some courts suggest that a finding of confinement requires that the plaintiff
has made reasonable attempts at escape, but even those that apply an inquiry into whether the
plaintiff could have escaped do not deem it necessary where the e scape attempt would be dangerous.
False Imprisonment | 137

Coercion to remain only sometimes creates the necessary grounds for finding confinement.
Threatening to fire an employee wrongly suspected of shoplifting may cause him to remain on site
until the error is cleared up. However, his choice to remain defeats any false imprisonment claim,
even if he feared losing his job and would face se vere e conomic consequences for leaving it. However,
retaining something of value to a person can count as confinement for false imprisonment, whether
that is the person’s wallet, keys or children.
Note 2. What do you think the real-world consequences of a ruling like this one will be ? Do you think
that might have mattered to the court in its interpretation of the facts?
Note 3. Which of tort’s purposes do you think this ruling most serves or disserves, and why?
Answering this question may help you identify the ruling’s doctrinal underpinnings and anticipate its
likely impact.

138 | False Imprisonment

10. Intentional Infliction of Emotional
Distress (“IIED”)
Elements
• Intent: either reckless or intentional
• Action that is extreme and outrageous and
• Causes severe emotional distress
As noted in the introduction to Module 2, IIED was an outlier among the intentional torts rather
than a creature of the writ system. Its elements reflect some of the uncertainty and compromises
that led to its eventual adoption. First, its intent standard is lower than the usual intent standard in
that it permits either intent or recklessness (which is a higher culpability standard than negligence
but lower than intentional action). The se cond prong requires both extreme and outrageous behavior.
Sometimes conduct is outrageous but happens only once and may fail to qualify as extreme. More
commonly small irritating actions can, when done over many months or years, rise to a le vel that
causes the conduct to qualify as e
xtreme and outrageous. The

conduct, however, is

indeterminate—that is, not specified in advance. This indeterminacy is why the tort’s harm standard
is heightened. Recall that in battery and trespass, no harm even need be proven; by contrast with IIED
the harm must demonstrably exist and be severe. Its amorphous shape and its emphasis on emotional
evidence has le d courts to disfavor it or to refuse to adopt it in many instances. In some jurisdictions,
the tort is only allowed where the facts provide an alternate the ory of recovery; in others the tort is a
“gap-filler” and available only where no other means of redress exists. The se vere emotional distress
is measured subjectively, not objectively. In theory, all prongs of the doctrine are questions of fact for
the jury. In practice, the “outrageousness” element is frequently decided by a judge.

Questions or Areas of Focus for the Readings:
• What’s different about IIED’s intent standard? What might that reflect?
• What are the risks and benefits of having a flexible, fact-specific standard for “extreme and
outrageous” conduct?
• What else differentiates IIED from the core intentional torts you have learned?

Intentional Infliction of Emotional Distress (“IIED”) | 139

Mitchell v. Giambruno, Supreme Court, Appellate Division, Third
Department, New York (2006) (35 A.D.3d 1040)
Plaintiffs are a same-sex couple who purchased and moved into a house in the Village of Dannemora,
Clinton County, in 1999. In this action commenced in November 2002, plaintiffs accused defendants,
their neighbors, of, among other things, the intentional infliction of emotional distress. As the result of
a jury verdict, plaintiff Susan Mitchell was awarded the sum of $50,000 and plaintiff Elizabeth Meseck
was awarded $35,000. Defendants Michael Giambruno, Corrine Giambruno and Kimberly Granmoe
(hereinafter collectively referred to as defendants) [fn] appeal, contending that plaintiffs’ trial evidence
was insufficient to support the alleged cause of action.
It is well settled that in a cause of action for intentional infliction of emotional distress, a plaintiff must
plead and prove four elements: (1) extreme and outrageous conduct; (2) the intentional or reckless
nature

of such conduct; (3) a causal relationship between the conduct and the

resulting injury;

and (4) severe emotional distress [cc]. Plaintiffs’ trial evidence reveals that the interaction between
plaintiffs and defendants began as a result of what may fairly be characterized as a boundary line
dispute. This dispute escalated and a criminal trespass complaint was filed by the Giambrunos against
Mitchell and a restraining order was issued against her. Thereafter, for approximately two years,
defendants conducted what can only be characterized as a relentless campaign of lewd comments and
intimidation directed at plaintiffs and their lifestyle, both in private and in public. The final act prior
to the institution of this action occurred when defendants constructed two mock grave sites on the
Granmoes’ property directly facing plaintiffs’ home, which created a fear in plaintiffs that the graves
were intended for them.
*1042 Although insulting language intended to denigrate a person may not, in and of itself, rise to
the required level of extreme and outrageous conduct, liability may be premised on such expressions
where, as here, defendants’ campaign of harassment and intimidation is constant. [cc] Accordingly,
we conclude that this record contains sufficient evidence to support the jury’s determination that the
first two elements of the cause of action have be en proven, i.e., that the conduct of the defendants
was extreme, outrageous and intentional.
Defendants’ arguments that plaintiffs failed to prove a causal connection between defendants’
conduct and plaintiffs’ illnesses is based on plaintiffs’ failure to ask either medical witness for an
opinion concerning causation and because defendants allege that plaintiffs had other stressors in
their lives. We are unpersuaded by either argument. Insofar as a participant (as compared to a
bystander) is concerned, where

a duty owed the

participant is breached, resultant injury is

compensable only if it is a direct (not consequential) result of the breach [cc]. Here, the evidence
of direct injury from the breach is manifest. Nurse practitioner Paula Covey testified on behalf of
Mitchell, and physician Richard Webber testified on behalf of Meseck. Both testified concerning their
training and experience in diagnosing and treating anxiety and depression and the resultant physical
manifestations, if any. Both testified that plaintiffs were patients in their office prior to and during
the two years encompassed by defendants’ conduct. Each testified that their patients’ level of anxiety
increased as did the depth of their depression as they continued to complain about defendants’
140 | Intentional Infliction of Emotional Distress (“IIED”)

conduct, the ne cessity of retaining counsel, the lawsuit and the trial. The frequency with which
plaintiffs sought treatment, as well as their medication to control their conditions, increased during
this period. Covey testified to Mitchell’s resultant indigestion, diarrhea and irritable bowel syndrome
and her hospitalization for brief periods on more than one occasion.
Given this testimony, we conclude that the causal connection between defendants’ conduct and
plaintiffs’ illnesses was well within the ken of the ordinary lay juror and the me dical practitioner’s
opinion as to causation would be mere surplusage. Moreover, given the timing of the e vents, the
jury could rationally conclude that the *1043 other stressors—Mitchell’s job stress, Meseck’s stress
in caring for Mitchell’s 101–year–old grandmother and the arguments they had with each other over
whether to retain counsel and sue—all were temporarily related to defendants’ conduct and were
caused or exacerbated by them. Finally, the jury could rationally conclude from the e vidence that the
emotional distress of each plaintiff was severe.
To the e xtent not hereinabove discusse d, we have considered defendants’ remaining arguments and
found each to be lacking in merit.
ORDERED that the judgment is affirmed, without costs.
Note 1. Given that insulting language

alone

is almost ne ver enough to qualify as “extreme and

outrageous,” what additional facts or factors seem to have driven the court’s ruling?
Note 2. As you continue to le arn about IIED. you will see that it serves particular purposes that reflect
societal values at different moments in time. Consider whether its elements and application create
an optimal balance. Should sociological factors and differences of identity be taken into account
when evaluating whether particular behavior is “extreme” and/or “outrageous”? What is the risk of
incorporating particular perspectives and what are the costs to not doing so?
Note 3. IIED claims often fail when plaintiffs do not show a significant change to their sense of
wellbeing. Fairly or unfairly, courts struggle to find that change when plaintiffs are dispositionally
nervous or depressive; if they are generally happy people who undergo significant change because
of the e xtreme and outrageous conduct of the defendant, the IIED claim stands a higher chance of
success. In one sense, this simply reflects the requirement that the distress be “severe.” In another
sense, however, it may stack the de ck in favor of particular kinds of personalities and temperaments,
biasing the law against others. Should tort law treat all plaintiffs equally no matter their backgrounds
or dispositions? Is the eggshell plaintiff doctrine reconcilable with this default of permitting recovery
only in cases where a plaintiff didn’t start out with signs of any distress?
Note 4. At common law, there was a firm rule against recovering for purely emotional distress under
Lynch v. Knight, 9 H.L.C. 577, 598 (1861) (“mental pain or anxiety the law cannot value, and does not
pretend to redress.”) However, in the late 1930s, two torts jurists charted judicial departures from
that norm and were able to categorize them in service of an argument that courts had been allowing
recovery for emotional distress. Calvert Magruder, a judge on the Court of Appeals for the First Circuit
and William Prosser, the torts scholar and academic, were both drafters of the Restatement and
would eventually be responsible for introducing the tort of IIED. Among the documented exceptions
to the Lynch rule were insults or abuse by common carriers (as you saw in Luther and Henderson);
Intentional Infliction of Emotional Distress (“IIED”) | 141

harassment by creditors wielding power over debtors; cruel or vicious practical jokes; stalking or
significant sexual harassment; and claims for mishandling bodily remains or interference with death
and death rituals.
Today, the

fact patterns that tend to fall into “extreme and outrageous” conduct include

some

aspects of those three clusters. For instance, if defendant’s conduct is continuous or ongoing, liability
is likelier. If a plaintiff has no practical way out (because the y are in the care or custody of an
entity) or lacks the power to make a change (be cause of a power dynamic or economic coercion),
again the conduct tends to be judged more harshly against the defendant. Similarly, if there is a
potential abuse of authority, a finding of outrage is likelier. As you evaluate IIED fact patterns, look
at the relationships involved: were the parties in a hierarchical relationship, such as landlord/tenant,
supervisor/employee, professor/student or creditor/debtor? Was there a conflict of professional
interest? It may go without saying but where there is e vidence that the defendant knowingly exploited
the plaintiff’s vulnerable condition or particular sensitivity, the plaintiff’s case strengthens. Along
those lines, where the de fendant is shown to have lie d or to have a se cret intent to inflict harm, the
conduct is likelier to be found outrageous.

Banks v. Fritsch, Court of Appeals of Kentucky (2001)
(39 S.W.3d 474)
The appellant, Wade Banks, brought this complaint against the appellee, John Fritsch, alleging false
imprisonment, assault and battery, and outrageous *476 conduct. A jury trial was conducted on July
21, 1999. At the close of Banks’s case, the trial court directed a verdict in favor of Fritsch, finding that
Banks had failed to present evidence that he had be en damaged by Fritsch’s conduct. We find that the
trial court erred in dismissing the claims for false imprisonment and assault and battery as there was
sufficient evidence of emotional damages to warrant submitting the issue to the jury. However, we
also conclude that the tort of outrageous conduct is not available unde r the facts presented in this
case. Hence, we reverse the trial court in part, affirm in part, and remand this action for a new trial.
Since the trial court dismissed this action on a motion for a directed verdict, we shall vie w the
evidence in the light most favorable to the appe llant. In June 1996, Banks was 17 years old and was
a Junior at Bourbon County High School. His last class of the school day was Agriculture Wood
Construction, taught by Fritsch. By his own admission, Banks had either skipped the class or left the
1

class early on a number of occasions during that semester. Banks testified that, while he was walking

1. Fritsch’s records show that Banks had missed class seven or eight times from January through April, and an additional
ten days during May. However, the school’s attendance records only show Banks absent from the class on three days. In
his testimony, Banks admitted that he had skipped the class at least eight times. Fritsch’s records also show that several
other students skipped the class more often than Banks. According to Banks, the other students were in his work group,
and he was often left to complete projects alone. Fritsch testified that he was aware of this problem, and gave Banks the
painting assignments so that Banks might be able to complete his class work.
142 | Intentional Infliction of Emotional Distress (“IIED”)

to the class on June 4, another student told him that Fritsch had a chain, and was planning to chain
Banks up to keep him from skipping class. Nevertheless, Banks proceeded to the class.
Banks testified that when Fritsch walked into the classroom, he had a large log chain over his shoulder
and had several key locks on his belt loop. Fritsch then told Banks that he was going to keep him from
leaving the class e arly. After taking roll, Fritsch directed Banks to put his leg up on a chair so he could
put the chain around Banks’s ankle. Banks states that he initially protested, and then went along after
Fritsch repeated the instruction. Fritsch secured the chain around Banks’s ankle, and led him outside
to an area where the class was painting feed troughs. Fritsch then put the chain around a tree, locked
it, and told Banks not to go anywhere.
The entire class followed Fritsch and Banks from the classroom to the tree. After Banks was secured to
the tree, Fritsch returned to the classroom and the other students went on with their projects. Banks
sat down under the tree, removed his shoe and began trying to work the chain loose. After several
minutes, Banks was able to remove the chain from his ankle, and he then attempted to leave the school
premises. Several of his classmates chased Banks down, tackled him, and then carried Banks back to
the tree. Fritsch returned, placed another chain around Banks’s neck, and then secured it to the chain
around the tree.
Banks testified that he initially stood up and held the chain to keep its weight off of his neck. After
about fifteen minutes, he got tired of holding the chain, so he sat down and began crying. Banks
told another student that the chain was bothering him, and the student went to tell Fritsch. Several
minutes later, Fritsch came and removed the chain from Banks’s neck. However, Fritsch then secured
the other chain tightly around Banks’s ankle.
Thereafter, Fritsch and Banks began discussing his grades in the class and what it would take from
him to pass. Fritsch returned to the classroom to check his records to see if Banks was in a position
to pass the class. Upon returning five minutes later, Fritsch told Banks that he could pass the class if
he painted the three remaining *477 feeder and mineral troughs. Banks agreed and Fritsch removed
the chain. Banks subse quently finished the painting assignments, and he received a passing grade in
Fritsch’s class. Banks testified that the chaining incident took place over a period of about an hour and
a half.
Fritsch’s account of the incident differs only slightly in the de tails, but markedly in tone. Fritsch
testified that the ide a of chaining Banks started as a joke be tween him and the other students in the
class. Several days prior to the incident, Fritsch made an off-hand comment in front of the class to
the effect that perhaps he should chain the truant boys to keep them from skipping class. On June
4, as Banks was arriving for class, the other students reminded Fritsch of this statement. After some
prodding from the class, Fritsch decided to go forward with the plan.
Fritsch further testified that Banks never objected to the chaining, and in fact, he went along with the
joke and appe ared to enjoy the attention. Fritsch did not recall placing the chain on Banks’s leg in the
classroom and leading him outside. This testimony was contradicted somewhat by another teacher,
Ralph Speakes, who saw Banks leaving Fritsch’s classroom with the chain around his ankle. However,
Speakes also testified that everyone (including Banks) seemed to be laughing about it. In addition,
Intentional Infliction of Emotional Distress (“IIED”) | 143

Fritsch states that after Banks managed to remove the chain the first time, he called it to the attention
of the other students and dared them to catch him. Several students informed Fritsch about Banks’s
escape, and they asked Fritsch what they should do about it. Fritsch told them that Banks should
come back and finish the project, but he stated that he did not tell any of the students to bring Banks
back. Speakes testified that Banks appeared to be le ading the chase, and after the students caught up
with Banks, they merely led him back to the class area. Fritsch denied that Banks ever showed that
he was upset about the chaining or that he e ver asked for the joke to stop, e xcept for when Banks
complained about the chain around his neck. Fritsch steadfastly denies that the chaining was intended
as a punishment, or that he e ver intended to hurt or humiliate Banks. Rather, Fritsch merely intended
it as a light-hearted prank to impress on Banks the importance of staying in class and finishing his
assignments. Fritsch further stated that the entire incident took place over 25 to 30 minutes.

2

Banks testified that he was deeply upset by the chaining and thought about it often. After the incident
was publicized, he states that other students gave him a hard time about it on several occasions.
He also received a lot of unwelcome and negative me dia attention over the incident. In response, he
decided that he could not return to Bourbon County High School in the fall. Instead, he went to live
with his father and attended his senior year of high school in Columbia, Missouri. Banks testified that
the move was traumatic for him, and it was difficult for him to fit in at his new school.
Banks saw a psychologist to discuss his feelings once prior to the move to Missouri. Banks further
testified that sometimes he has flashbacks and sometimes starts to cry over memories of the chaining.
His family members stated that Banks had a hard time de aling with the incident and often seemed
withdrawn. However, there was no expert testimony describing Banks’s emotional state following the
chaining.
At the close of Banks’s case, the trial court granted Fritsch’s motion for a directed verdict. The court
determined that *478 there was enough evidence to establish that a false imprisonment and an assault
and battery occurred. However, the court concluded that there was no evidence that Banks had been
damaged by Fritsch’s conduct. The trial court stated on the record:
I mean, this strikes me as being exactly what it’s characterized as, a prank, and perhaps one
that was not appreciated by Mr. Banks and I can understand that, but I don’t see that there’s
been any harm done here. Clearly, Mr. Fritsch should not have done this. He’s been told that
by a number of people, I think he realizes that. The fact is it happened, and basically there
seems to be no harm, no foul here. And I haven’t been proved-it hasn’t been proven to me,
and therefore I don’t think the jury can find that there are damages here that Mr. Banks has
suffered. There’s evidence of that, I don’t think that that is significant at this point. I think on
the basis of the damages issue, that I am going to direct a verdict here in favor of Mr. Fritsch

2. Following a complaint by Banks’s mother, the school superintendent investigated the incident and suspended Fritsch for
45 days. Fritsch challenged the suspension and sought a hearing. The Kentucky Department of Education appointed a
three-member tribunal to hear the matter pursuant to KRS 161.790. The Tribunal conducted a hearing and set aside the
suspension.
144 | Intentional Infliction of Emotional Distress (“IIED”)

on all of these counts. I just don’t think the jury has enough evidence to de cide that Mr. Banks
has been damaged by the incidence [sic], that it has been proven to then happen.
The trial court’s written order granted the directed verdict for Fritsch based upon the oral findings
in the record. Banks now appeals, arguing that there was sufficient evidence of damages to warrant
submitting the issue to the jury. He further argues that he was also entitled to an instruction on
punitive damages.
Fritsch responds that the trial court properly granted his motion for a directed verdict because Banks
failed to establish the elements of false imprisonment, assault and battery, and outrageous conduct.
However, the trial court specifically granted the directed verdict based upon lack of evidence to
establish that Banks was damaged by Fritsch’s actions. Moreover, the trial court found that Banks
had presented sufficient evidence to create a jury issue on his claims alleging false imprisonment
and assault and battery. Since Fritsch did not file a cross-appeal contesting this finding, this appeal
is limited to the question of whether Banks presented sufficient evidence of damages to overcome
Fritsch’s motion for a directed verdict.
On a motion for directed verdict, the trial judge must draw all fair and reasonable inferences from
the e vidence in favor of the party opposing the motion. When engaging in appellate review of a ruling
on a motion for directed verdict, the reviewing court must ascribe to the e vidence all reasonable
3

inferences and deductions which support the claim of the prevailing party. Once the issue is squarely
presented to the trial judge, who heard and considered the e vidence, a reviewing court cannot
4

substitute its judgment for that of the trial judge unle ss the trial judge is cle arly erroneous. However,
a trial judge cannot enter a directed verdict unless there is a complete absence of proof on a material
issue or if no dispute d issues of fact exist upon which reasonable minds could differ. Where there is
conflicting evidence, it is the responsibility of the jury to determine and resolve such conflicts, as well
5

as matters affecting the credibility of witnesses.

In order to consider the propriety of the trial court’s decision to grant the motion for a directed
verdict, we must first consider the nature of the claims asserted by Banks. The action for the tort of
false imprisonment, sometimes called false arrest, is a lineal descendant of the old action of trespass
6

to person. It protects the personal interest in freedom from physical *479 restraint. The interest
involved is “in a sense a mental one,” and false imprisonment may be maintained without proof of
7

actual damages. The tort is complete after “even a brief restraint on the plaintiff’s freedom,” and the
8

plaintiff may recover nominal damages. The plaintiff is entitled to compensation for loss of time, for
physical discomfort or inconvenience, and for any resulting physical illness or injury to health. Since

3. Meyers v. Chapman Printing Co., Inc., Ky., 840 S.W.2d 814, 821 (1992).
4. Bierman v. Klapheke, Ky., 967 S.W.2d 16, 18–19 (1998).
5. Id. at 19.
6. Prosser & Keeton on Torts § 11, at 47 (5th ed.1984) (hereafter Prosser & Keeton).
7. Id. at 47.
8. Id. at 48.
Intentional Infliction of Emotional Distress (“IIED”) | 145

the injury is in large part a mental one, the plaintiff is also entitled to damages for mental suffering,
humiliation and the like.

9

Kentucky cases define false imprisonment as being any deprivation of the liberty of one person by
another or detention for however short a time without such person’s consent and against his will,
whether done by actual violence, threats or otherwise.

10

Furthermore, false imprisonment requires

that the restraint be wrongful, improper, or without a claim of reasonable justification, authority or
11

privilege. Fritsch’s potential liability does not arise out of his efforts to keep Banks from leaving the
class, and there is no contention that Fritsch was acting within the scope of his authority as a teacher.
Rather, Fritsch’s primary defense is that there was no imprisonment because Banks consented to
being chained.
There are no Kentucky cases which directly discuss what evidence is ne cessary to prove damages
from false imprisonment. However, a number of cases are

instructive

insofar as they address

evidentiary issues relating to submission of the issue of damages to the jury. In Butcher v. Adams,

12

the plaintiff’s testimony that he was humiliated by his false arrest on charges relating to the operation
of his tavern was mitigated by evidence that he had previously been arrested on similar charges. The
court noted that this evidence was sufficient for the jury to consider whether the plaintiff had actually
been embarrassed by the false imprisonment.
13

In Bradshaw v. Steiden Stores, Inc., a store patron was detained for an hour while the store owner
checked on the validity of her check. The store owner then told her to go to a back room, where briefly
the patron was questioned by two policemen. Once the validity of the che ck was established, the
patron was allowed to go. The former Court of Appeals acknowledged that the patron had established
a “borderline” case of false imprisonment. However, the Court noted that there was no evidence that
the patron had been unnecessarily humiliated or embarrassed by the incident. Since at most the
evidence would have justified an award of nominal damages, the Court concluded that the directed
verdict in favor of the store owner was not reversible error. Similarly, in SuperX Drugs of Kentucky, Inc.
14

v. Rice, this Court held that, in an action for false imprisonment where the person is subsequently
and properly charged with the commission of a felony, she can recover damages only for that mental
suffering and embarrassment *480 which she endured during the period prior to her arrest. Under
these circumstances, this Court concluded that the plaintiff was entitled to no more than nominal
damages, and the jury’s award of $75,000.00 in compensatory damages was clearly excessive.
The common thread among all these cases is that a plaintiff may be entitled to at least nominal

9. Id.
10. Grayson Variety Store, Inc. v. Shaffer, Ky., 402 S.W.2d 424 (1966); Great Atlantic & Pacific Tea Co. v. Billups, 253 Ky. 126, 69
S.W.2d 5 (1934); Ford Motor Credit Co. v. Gibson, Ky. App., 566 S.W.2d 154 (1977). See also Columbia Sussex Corp., Inc. v.
Hay, Ky.App. 627 S.W.2d 270 (1981).
11. See Great Atlantic & Pacific Tea Co. v. Smith, 281 Ky. 583, 136 S.W.2d 759 (1939); J.J. Newberry Co. v. Judd, 259 Ky. 309, 82
S.W.2d 359 (1935); and Louisville & Nashville Railroad Co. v. Mason, 199 Ky. 337, 251 S.W. 184 (1923).
12. 310 Ky. 205, 220 S.W.2d 398 (1949).
13. Ky., 265 S.W.2d 64 (1954).
14. Ky. App., 554 S.W.2d 903 (1977).
146 | Intentional Infliction of Emotional Distress (“IIED”)

damages arising from the humiliation, emotional distress or damage to reputation caused by the
false imprisonment. “Humiliation and embarrassment are, by their nature, not easily quantified….”

15

Nevertheless, the degree of humiliation or embarrassment actually suffered by the plaintiff is a factual
matter for the jury to decide.
There

was clearly a factual issue

concerning whether Fritsch’s conduct constituted an unlawful

imprisonment of Banks. Furthermore, Banks testified that he suffered humiliation, embarrassment,
emotional distress and he was he ld up to the ridicule of his peers by being publicly chained. There was
contrary evidence that Banks did not express any distress during the chaining. Nevertheless, we are
satisfied from the record that the jury could have returned a verdict for Banks for an amount greater
than nominal damages. Consequently, we find that the trial court’s decision to dismiss this claim was
erroneous.
Banks’s second claim is that Fritsch’s conduct amounted to an assault and battery. Assault is a tort
which merely requires the threat of unwanted touching of the victim, while battery requires an
16

actual unwanted touching. Since intent is an essential element of assault and battery, the trial court
17

properly left to the jury the issue of Banks’s consent to the chaining. However, a plaintiff need not
prove actual damages in a claim for battery because a showing of actual damages is not an element
of assault or battery and, when no actual damages are shown for a battery, nominal damages may be
18

awarded. Furthermore, a recovery for emotional distress caused by the assault or battery is allowable
19

as an element of damages in an action based upon those torts. Consequently, we find that the trial
court’s dismissal of Banks’s claims for assault and battery also was erroneous.
Banks’s third claim was that Fritsch’s conduct amounted to the tort of outrageous conduct. The trial
court did not address this claim, but presumably the court’s finding that Banks failed to prove damages
applies to this claim also. The tort of intentional infliction of emotional distress, or outrage, was first
recognized in Kentucky in Craft v. Rice.

20

In that case, the Kentucky Supreme Court adopted the

following portion of Section 46 of the Restatement (Second) of Torts:
One

who by e
xtreme and outrageous conduct intentionally or recklessly causes severe

emotional distress to another is subject to liability for such emotional distress, and if bodily
harm to the other results from it, for such bodily harm.

21

In order to recover, the plaintiff must show that defendant’s conduct was intentional or reckless, that
the conduct was so outrageous and intolerable as to offend generally accepted standards of morality
and decency, that a causal connection *481 exists between the conduct complained of and the distress

15. Daugherty v. Kuhn’s Big K Store, Ky. App., 663 S.W.2d 748, 752 (1983) (quoting Kentucky Commission on Human Rights v.
Fraser, Ky., 625 S.W.2d 852, 855 (1981)).
16. Brewer v. Hillard, Ky. App., 15 S.W.3d 1, 8 (1999).
17. Graves v. Dairyland Insurance Group, Ky., 538 S.W.2d 42, 45 (1976).
18. Vitale v. Henchey, Ky. 24 S.W.3d 651, 659 (2000) (citing 6 Am. Jur. 2d., Assault and Battery §§ 144 and 146).
19. Rigazio v. Archdiocese of Louisville, Ky. App., 853 S.W.2d 295, 299 (1993).
20. Ky., 671 S.W.2d 247 (1984).
21. Restatement (Second) of Torts, § 46(1) (1965).
Intentional Infliction of Emotional Distress (“IIED”) | 147

suffered, and that the resulting emotional stress was severe.

22

An action for outrage will not lie for

“petty insults, unkind words and minor indignities”; the action only lies for conduct which is truly
23

“outrageous and intolerable.”

In addition, the tort of outrage is intended as a “gap-filler”, providing redress for extreme emotional
distress where traditional common law actions do not. Where an actor’s conduct amounts to the
commission of one of the traditional torts such as assault, battery, or negligence for which recovery
for emotional distress is allowed, and the conduct was not intended only to cause e xtreme emotional
distress in the victim, the

tort of outrage will not lie. Recovery for emotional distress in those

instances must be had under the appropriate traditional common law action.

24

We have previously held that Banks may be able to recover emotional damages arising from false
imprisonment, assault or battery. Hence, Banks must show that Fritsch’s actions were intended only
to cause him e xtreme emotional distress, rather than to merely touch or to deprive him of his liberty.
We find no evidence in the record which would support such a finding by the jury. As a result, Banks’s
claim of outrageous conduct would not be appropriate in this case, and the trial court properly
granted a directed verdict on this cause of action.
Lastly, Banks argues that he was entitled to an instruction on punitive damages. The trial court did
not address this issue because it dismissed the action based upon lack of evidence of compensatory
damages. Since we are remanding this action for a new trial, the trial court must consider the
propriety of an instruction on punitive damages based upon the evidence presented at that time.
Note 1. What does it mean when the court calls IIED a “gap-filler”? What do you understand about its
purpose and scope so far? Why do you suppose it arose, rather than having changes arise within the
other torts such as battery, assault, and false imprisonment?
Note 2. Revisit the facts of Ruiz v. Bertolotti. What interest was the court protecting? What conduct
was the court seeking to limit or prevent? Is IIED better understood as a “gap-filler” or a backstop?

Check Your Understanding – Set 16

22. Humana of Kentucky, Inc. v. Seitz, Ky., 796 S.W.2d 1, 2–3 (1990).
23. Kroger Co. v. Willgruber, Ky., 920 S.W.2d 61, 65 (1996).
24. Rigazio, 853 S.W.2d at 299; Brewer v. Hillard, 15 S.W.3d at 7–8.
148 | Intentional Infliction of Emotional Distress (“IIED”)

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=43#h5p-36

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=43#h5p-37

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=43#h5p-38

Hypothetical: Detained Shoppers
Mr. and Mrs. Bill and Kerry North packed their three children and Mr. North’s mother into their Ford
Bronco and set out for the “Giant Liquidation Sale” held that day at Doe’s Department Store. When
they arrived, they found the store quite disorganized and the merchandise displaced and picked-over.
Nonetheless, their search for bargains began. Two dolly hand trucks caught the e ye of Mr. North as
he browsed through the store. Noticing that the hand trucks were being “eyed” by another shopper,
Mr. North decided to purchase the m while the y remained available. The trucks each apparently bore
two or more price tags, all showing identical prices of $34.99 each. Mrs. North and her mother-in-law
took money from Mr. North and purchased the dollies at the cashier’s line. The cashier totaled the
prices, added tax, and then discounted the sale by fifty percent. The cashier gave Mrs. North a receipt
and Mrs. North left the store with her mother-in-law and locked the dollie s in the Bronco. They both
returned to the store and Mrs. North gave the receipt and change from the purchase to her husband.
The Norths soon realized that the store management was paging the owner of a Ford Bronco (jeep).
Mr. North went to see if there was a problem. He left Mrs. North and his mother behind to watch
the children and to continue their shopping. Upon reaching the front of the store, Mr. North saw a
police officer and asked whether anyone had hit his jeep. There, the store manager accused him of
Intentional Infliction of Emotional Distress (“IIED”) | 149

stealing merchandise. The manager threatened him with arrest if he did not return the goods. Mr.
North stated that he did not know to what the manager was referring. The manager repeated the
accusation and threat of arrest and Mr. North, finally understanding that the goods in question were
the dollies, showed the manager the receipt and change his wife received for the purchase of the
goods.
The store manager disregarded the receipt as being “impossible” because the dollie s were not for sale,
but rather were for use by store employees for transporting merchandise within the store. Mr. North
pleaded with the officer not to arrest him as he had indeed purchased the goods and was not a thief.
The manager, however continued his accusations of thievery while a number of customers formed
small groups around the altercation that had now lasted some twenty minutes.
Attempting further to resolve this embarrassing matter, Mr. North explained that it had been his wife
and mother who had purchased the dollie s. The manager threatened to arrest them also. Mr. North
asked the manager not to involve his wife be cause she was an outpatient at Forsyth Memorial Hospital
and could not handle the aggravation and anxiety. Disregarding this warning, the manager, after
spotting Mrs. North, confronted her and accused her of stealing the dollies. Mrs. North protested that
she had paid for them, received a receipt, and placed the goods in the je ep. The manager, however,
continued his accusations.
Mrs. North located the cashier who had received payment for the dollies. The manager again ignored
the proffer of the receipt and the verification by the cashier of the sale. At this time, the officer took
the Norths out to their jeep to look at the dollies. By the time the y had returned, the Norths had been
detained for some se venty-five minutes. Mr. North then asked for the names of the police officer, the
store manager, and the cashier. The manager refused to give the name s, stating that if the Norths
“got the names, then they would be arrested.” The Norths left the store without the requested names.
Their last memory of this episode was the manager’s reminder that they could be arrested for larceny
anytime within the next year.
Instructions for this hypothetical practice: What intentional torts can Mr. and Mrs. North bring
against the department store? Consider them as separate plaintiffs.
Note 1. Why do you think the hypothetical (drawn from an actual case) makes mention of the store’s
disorganization, at the start of the facts?
Note 2. The Shopkeeper’s Privilege. Merchants and businesses, in generally, may avail themselves
of a defense called the shopkeeper’s privilege that immunizes them against prosecution or litigation
for false imprisonment. The hypothetical above comes from a case in North Carolina in which a trial
court directed a verdict for the store. However, it was reversed on appeal and a judge found multiple
grounds (including false imprisonment and others) on which the plaintiff and his wife could recover.
West v. King’s Dept. Store, Inc., (365 S.E.2d 621) (Sup. Ct. N.C. 1988). The case illustrates the variability
of the shopkeeper’s privilege as well as the way that it can be defeated by conduct that appears to be
malicious or egregious as the court ruled that a jury might find it to be on these facts.
Some

jurisdictions have

passe d statutes to create

robust immunity for detaining or questioning

or searching a customer based on a reasonable belief that the customer may be shoplifting. The
150 | Intentional Infliction of Emotional Distress (“IIED”)

shopkeeper’s privilege also e xists at common law, where it grants an employee the authority of law
to detain a customer to investigate the ownership of property in a reasonable manner and for a
reasonable period of time, again only if the employee has reasonable belief that a customer has stolen
or is attempting to steal store merchandise. These forms of immunity give merchants latitude to take
actions that will sometimes be mistaken and may result in some embarrassment, hassles to innocent
customers, or the experience of having one’s person and property invaded or searched. The standard
of reasonableness, is, of course, objective: the inquiry is whether it was reasonable for the shopkeeper
to believe theft was imminent or underway, not whether the customer is guilty, or innocent (which
would be a “subjective” standard, particularized to and provable about this customer). Why has the law
used an objective standard for the shopkeeper’s conduct, rather than a subjective standard about the
customer?
Note 3. Optimally, the law would strike a balance be tween the store’s right to protect its wares and the
customer’s right to freedom from unreasonable inquiries. Has the law found that balance, in your view,
as a normative matter? What changes could tort law make? What effects would flow from any such
changes? What other (non-legal) sorts of changes can you imagine being helpful here? Could such
changes contribute more effectively to achieving greater balance between customers and stores?
Note 4. Recall the footnote in Villa about the e thnicity of the plaintiff and the mentions of Ms. Ali’s
being from Trinidad in Ali v. Margate. Would it have a be aring on your analysis if you knew the
demographic identity of the Norths? How about the store manager and cashier? Would it matter to
your analysis if the store were located in a wealthy part of town or a poorer one? What inferences
would you draw from any of these details? Normatively, should tort law strive

to flatten any

differences or should its rules retain a focus on factual differences, case to case?

Intentional Infliction of Emotional Distress (“IIED”) | 151

11. IIED: A Deeper Dive (Socratic Script)
Questions or Areas of Focus for the Readings:
• How does IIED fit with your understanding of the allocation of questions of law, versus fact?
• How does IIED fit with your understanding of the purpose and operation of the intentional torts
overall?
• How might IIED advance or obstruct goals of racial and social justice?

Spicer v. Patnode, Court of Appeals of Washington, Div. 3 (2019)
(9 Wash. App.2d 283)
*285 ¶ 1 Over the course of four months, Paul Patnode regularly and repeatedly remote-started his
Ford F-250 pickup, revved its engine, and activated its alarm to scare Junghee Spicer’s young piano
students as they walked past his truck on the way to their piano lessons. Mr. Patnode’s purpose was
to interfere with Ms. Spicer’s piano lesson business and to cause her severe distress. He faile d in his
first objective, but accomplished the se cond. The trial court found in favor of Ms. Spicer on her claim
of outrage and awarded her $40,000.
¶ 2 The primary question we answer is whether Mr. Patnode’s conduct was sufficiently outrageous and
extre me to sustain the trial court’s award. Conduct that is done infrequently merely to annoy a person
cannot form the basis of an outrage claim. But the same conduct, done frequently over a period of
weeks or months with the intent to cause se vere emotional distress to a person, can form the basis
of an outrage claim. We hold that Mr. Patnode’s conduct was sufficiently outrageous and extreme to
present a question of fact. For this reason, we defer to the finder of fact and affirm.
FACTS

1

Background prior to purported tortious conduct
¶ 3 Paul and Melissa Patnode live across Lyle Loop Road from Junghee and David Spicer. In 2009, Ms.
Spicer began teaching private piano lessons in her home, mostly to children. That year, Mr. Spicer
suffered a stroke. Three years later, he had to retire e arly. To supplement their income, Ms. Spicer
increased the number of piano lessons she taught.
¶ 4 In February 2012, Mr. Patnode complained to the Spicers about Ms. Spicer’s piano teaching

1. Mr. Patnode challenges 16 of the trial court’s findings of fact. Of these, 12 are quite nuanced and are unimportant to the
issues on appeal. The remaining challenges, those to findings of fact 23, 32, 33, and 34, are specifically addressed below.
152 | IIED: A Deeper Dive (Socratic Script)

business. Unable *286 to resolve

the

problems, Mr. Patnode

complained to Yakima County. His

complaints included increased traffic, damage to a sprinkler in his front yard, noise from car doors
shutting and remotely locking, and headlights coming into his house.
¶ 5 The complaints prompted Yakima County to require the Spicers to obtain a conditional use permit
for their business. On July 11, 2012, the Spicers obtained a minor home occupation permit from Yakima
County. The permit authorized Ms. Spicer to teach piano lessons for up to five students per day.
Lessons were permitted from 2:00 p.m. to 6:00 p.m., Monday through Friday, September through May.
The permit required the Spicers to provide off-street parking for customers.
¶ 6 In August 2012, Yakima County issued a modified permit that authorized Ms. Spicer to provide
lessons for two additional months per year and increase the numbe r of students to six per day. The
Spicers were still required to provide off-street parking for customers.
¶ 7 Throughout 2012, Mr. Patnode

continued complaining to Yakima County about Ms. Spicer’s

business. His complaints included Ms. Spicer teaching instruments other than piano and teaching
outside the authorized hours. In addition, he complained that parents dropped their children off and
picked them up along the street. He believed that this violated the off-street parking requirement.
¶ 8 In December 2012, Mr. Patnode sue d the Spicers and alleged that their piano business violated
the restrictive covenants that applied to the neighborhood. In 2014, the Spicers prevailed on summary
judgment. Mr. Patnode was ordered to pay more than $30,000 for the Spicers’ attorney fees and costs.
¶ 9 In 2014, the city of Selah annexed the parties’ neighborhood. Mr. Patnode began complaining to the
city of Selah that Ms. Spicer continued to violate her modified permit. That year, the Spicers formed
Yakima Arts Academy, LLC *287 (YAA). Ms. Spicer, through YAA, continued to teach piano lessons, both
in her house and also in a leased building in Yakima.
Purported tortious conduct
¶ 10 From around Thanksgiving 2015 to March 24, 2016, Mr. Patnode parked his Ford F-250 diesel
pickup along the side walk next to the Spicers’ residence where piano students entered the Spicers’
home. Other vehicles belonging to Mr. Patnode or his household also parked along the Spicers’side of
the street.
¶ 11 During this time, Mr. Patnode regularly and repeatedly remote-started his F-250 and set off its
alarm when Ms. Spicer’s students and their parents walked by the F-250. Ms. Spicer observed this
conduct approximately 12 times. When Ms. Spicer observed this conduct, it frightened her and her
students. Mr. Spicer observed this conduct about six times.
Ms. Spicer’s 2016 anti-harassment petition
¶ 12 In 2016, Ms. Spicer petitioned for an anti-harassment order against Mr. Patnode. Based on
evidence

presented at the

anti-harassment hearing, the

court granted Ms. Spicer’s request and

entered an anti-harassment order. The order prevented Mr. Patnode from parking vehicles on Ms.
Spicer’s side of the street and required him to disable the remote-start and alarm for his F-250. Mr.
Patnode complied with the order.
IIED: A Deeper Dive (Socratic Script) | 153

This lawsuit [sic]
Partial grant of summary judgment for the Spicers
¶ 13 In May 2016, the

Spicers filed this lawsuit against Mr. Patnode. They sought damage
s for

intentional interference with their piano business and damages for intentional infliction of emotional
distress. Prior to trial, the Spicers moved for partial summary judgment. The motion sought to *288
preclude Mr. Patnode from disputing (1) his conduct had no legitimate or lawful purpose and (2) his
conduct caused Ms. Spicer substantial emotional distress. The Spicers contended that these issues
had already been litigated and necessarily decided when they obtained the anti-harassment order in
March 2016. The trial court granted their motion.
Trial
¶ 14 At trial, Ms. Spicer testified that Mr. Patnode’s conduct caused her severe emotional distress
because she feared for her safety and the safety of her children and students. She e xplained that Mr.
Patnode’s remote-starting his truck scared her because she was concerned he would “go to the ne xt
step and actually physically harm somebody.” Report of Proceedings at 131.
¶ 15 Ms. Spicer testified that Mr. Patnode caused her to suffer from anxiety and insomnia, and that she
began taking anti-anxiety medication in 2013. At some point after Mr. Patnode began remote-starting
his truck, Ms. Spicer began taking an additional anti-anxiety medication.
¶ 16 Two parents and one piano student testified about arriving for and leaving from piano lessons
between Thanksgiving 2015 and March 24, 2016. They testified they observed Mr. Patnode’s F-250
remotely starting, its engine revving, and its alarm activating on multiple occasions. One parent
testified that this made her scared and concerned for her children’s safety. One student testified
that every time he had a piano le sson be tween those dates, he observed the F-250 remotely start, its
engine rev loudly, and its alarm activate. The parents did not take their children out of piano lessons
with Ms. Spicer, and the student who testified did not quit taking lessons from Ms. Spicer.
¶ 17 The trial court found that Mr. Patnode did not cause any loss of business to the Spicers. The court,
however, did find that Mr. Patnode’s conduct was sufficiently outrageous to constitute intentional
infliction of emotional distress. *289 The trial court further found that Ms. Spicer, but not Mr. Spicer,
had proved compensable damages.
¶ 18 The trial court entered the following findings of fact to which Mr. Patnode assigns error:
23. In 2016, Ms. Spicer filed a petition for an anti-harassment order against Mr. Patnode. The Court
takes judicial notice that following a hearing, the Yakima County Superior Court orally concluded that
Mr. Patnode was remotely starting his F-250 and setting off vehicle alarms and doing so on purpose
2

repeatedly for the purpose of harassing the Spicers, making their lives more difficult. . . .

2. Mr. Patnode persuasively argues that the trial court erred by taking judicial notice of the previous court’s oral ruling. See
State v. Hescock, 98 Wash. App. 600, 606, 989 P.2d 1251 (1999). We give no weight to finding of fact 23. This does not
154 | IIED: A Deeper Dive (Socratic Script)

32. Junghee Spicer suffered severe emotional distress as a result of Mr. Patnode parking vehicles on
the street alongside the Spicers [sic] house from Thanksgiving 2015 to March 24, 2016, and regularly
and repeatedly remote starting his F-250 pickup (which included revving the engine, lights turning
on) and remotely setting off the ve hicle alarm while it was parked on the street alongside the Spicers’
house, where children/students and their parents were walking to and from lessons at the Spicers’
residence.
33. The conduct of Mr. Patnode described above was directed towards Ms. Spicer. Mr. Patnode sought
to interfere with the Spicers’ music business. Ms. Spicer was the direct recipient of Mr. Patnode’s
conduct even though she was not present for, and did not observe, all instances when Mr. Patnode
remote-started his F-250 or remotely set off the vehicle alarm when students and/or parents were
walking to or from piano lessons.
34. Ms. Spicer was fearful for her safety and for the safety of her students. … Ms. Spicer suffered
insomnia and anxiety as a result of Mr. Patnode’s conduct. Ms. Spicer began taking anti-anxiety
medication in 2013. At some time after the remote-start/alarm incidents described above, Ms. Spicer
began to take *290 one additional anti-anxiety medication. At the time of trial Ms. Spicer was also
taking a third anti-anxiety medication.
Clerk’s Papers (CP) at 322-26.
¶ 19 In addition, the trial court entered the following conclusion of law, to which Mr. Patnode also
assigns error:
6. Mr. Patnode’s conduct … was outrageous conduct. Ms. Spicer was the object of Mr. Patnode’s
course of conduct. Mr. Patnode’s conduct was directed at Ms. Spicer through her piano students
and their parents. Mr. Patnode’s object was to interfere with the teaching business and cause
distress to Ms. Spicer. Mr. Patnode’s conduct went beyond all possible bounds of decency,
and was atrocious and utterly intolerable in a civilized society. Mr. Patnode’s conduct was
intentional, he knew it would cause or inflict Ms. Spicer with emotional distress, and his conduct
in fact caused Ms. Spicer severe emotional distress. CP at 327-28 (emphasis added).
¶ 20 The trial court awarded Ms. Spicer $40,000 in damages.
¶ 21 Mr. Patnode timely appealed. A panel of this court granted oral argument, which occurred at
Whitman College, in Walla Walla, Washington.
*806 ANALYSIS
¶ 22 Mr. Patnode makes three arguments:
(1) conduct that Ms. Spicer or her immediate family members did not observe cannot form the basis
of Ms. Spicer’s outrage claim,(2) his conduct doe s not rise to the le vel of extreme and outrageous

impair the same findings contained in finding of fact 32, subject to those findings being supported by substantial
evidence.
IIED: A Deeper Dive (Socratic Script) | 155

conduct as a matter of law, and
(3) substantial evidence does not support the trial court’s finding that Ms. Spicer suffered severe
emotional distress.
We address the issues in the order argued by Mr. Patnode.
EVIDENCE NOT DIRECTLY WITNESSED BY MS. SPICER
¶ 23 Mr. Patnode argues the trial court erred by considering evidence not directly witnessed by Ms.
Spicer or her *291 immediate family members. His argument implies that his conduct was directed at
the young piano students.
¶ 24 When the outrageous conduct is directed at a third person, the plaintiff must be an imme diate
family member of the pe rson who is the obje ct of the defendant’s action, and he must be present at the
time of the conduct. Grimsby v. Samson, 85 Wash.2d 52, 60, 530 P.2d 291 (1975) (citing RESTATEMENT
(SECOND) OF TORTS § 46 cmt. l (AM. LAW INST. (1965))). This rule has no application here, where the
outrageous conduct was directed at Ms. Spicer rather than at a third person.
¶ 25 Here, the trial court found:

3

Ms. Spicer was the obje ct of Mr. Patnode’s course of conduct. Mr. Patnode’s conduct was
directed at Ms. Spicer through her piano students and their parents. Mr. Patnode’s object was
to interfere with the teaching business and cause distress to Ms. Spicer.
¶ 26 The

above

finding is well supported by the

e vidence
. For years, Mr. Patnode

sought to

substantially prevent, Ms. Spicer from teaching piano lessons at her house. He began by acting within
the legal process. He first complained to Ms. Spicer, later he complained to Yakima County, and still
later he complained to the city of Selah. When these complaints failed, he brought a lawsuit to prevent
Ms. Spicer from teaching piano lessons out of her house. He alleged that Ms. Spicer’s piano lesson
business violated the neighborhood’s restrictive covenants. The Spicers had that lawsuit dismissed
and were awarded their reasonable attorney fees.
¶ 27 Shortly after, Mr. Patnode began acting outside the le gal process. Mr. Patnode began scaring Ms.
Spicer’s young *292 piano students by remote-starting his F-250, revving its engine, and activating
its alarm. The young students, walking by his truck, did nothing to warrant being scared. In fact, Mr.
Patnode testified he did not remote-start his truck for the purpose of scaring the piano students or
their parents. The trial court reasonably found that Mr. Patnode’s conduct was not directed at the
young piano students, but instead was directed through them to Ms. Spicer. Because Mr. Patnode’s
conduct was directed at Ms. Spicer, the trial court did not err by considering evidence not directly
witnessed by Ms. Spicer.
EXTREME AND OUTRAGEOUS CONDUCT

3. This finding comes from the trial court’s conclusion of law 6. To the extent a conclusion of law contains a finding of fact,
an appellate court will treat it as a finding of fact. Hegwine v. Longview Fibre Co., 162 Wash.2d 340, 353, 172 P.3d 688
(2007).
156 | IIED: A Deeper Dive (Socratic Script)

¶ 28 Mr. Patnode argues, as a matter of law, his conduct does not amount to extreme and outrageous
conduct.
¶ 29 To constitute outrage, the conduct at issue “must be ‘so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.’” [cc] (“Consequently, the tort of outrage ‘does not extend
to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ In this area
plaintiffs must necessarily be hardened to a certain degree of rough language, unkindness and lack of
consideration.” [cc]
¶ 30 In order to prevail on a claim of intentional infliction of emotional distress, the plaintiff must
show (1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress,
and (3) actual result to plaintiff of emotional distress. [c] The claim is also known as the tort of outrage.
“Although the three elements are fact questions for the jury, th[e] first element *293 of the test goes
to the jury only after the court ‘determine[s] if reasonable minds could differ on whether the conduct
was sufficiently extreme to result in liability.’” [cc]
4

¶ 31 We e xamine Washington decisions to determine what type of conduct is sufficiently outrageous
and extre me to impose liability on an actor. Mr. Patnode cites Strong v. Terrell, 147 Wash. App. 376
(2008) and Snyder v. Medical Service Corporation of Eastern Washington, 98 Wash. App. 315 (1999),
aff’d, 145 Wash.2d 233 (2001) for the proposition that inflicting emotional harm on another over a
period of months is insufficient to meet the high standard of outrageousness. In both cases, the
plaintiff employees were subje ct to demeaning and insulting verbal treatment by their supervisors
over a period of months. Strong, 147 Wash. App. at 381; Snyder, 98 Wash. App. at 319. Both courts
noted that liability for outrage does not extend to treatment akin to “‘mere

insults, indignities,

threats, annoyances, petty oppressions, or other trivialities.’” Snyder, 98 Wash. App. at 321-22 (internal
quotation marks omitted) (quoting Grimsby, 85 Wash.2d at 59); accord Strong, 147 Wash. App. at 386.
The courts reviewed the supervisors’ treatment of their respective employees, determined that the
treatment did not rise above insults, threats, and trivialities, and concluded that no liability existed.
Strong, 147 Wash. App. at 386-87; Snyder, 98 Wash. App. at 322.
¶ 32 Mr. Patnode ne xt cites Saldivar v. Momah, 145 Wash. App. 365 (2008) to further support the
proposition that inflicting emotional harm on another over a period of months is insufficient to meet
the high standard *294 of outrage. In that case, a woman and her husband fabricated allegations of
sexual abuse against a physician and filed a lawsuit against him alleging that he se xually abused her. Id.
at 390. The trial court dismissed the plaintiffs’ claims after they rested, finding that the se xual abuse
claim was not credible and that the purported victim had lied on the stand. Id. at 383-84. The trial
court also found that the attorney for the plaintiffs filed “‘irrelevant and salacious declarations … for
the improper purpose of eliciting media/public attention, to harass and damage the reputation of Dr.
Momah, and to … gain advantage in other litigation.’” Id. at 386. Due to plaintiffs’ false claims and their

4. Each party cites several cases from other jurisdictions in support of their arguments. As shown below, even Washington
cases are inconsistent on what type of conduct is sufficiently egregious to constitute outrage. It is, therefore,
unsurprising that the out-of-state cases discussed by the parties and the dissent are inconsistent and unhelpful.
IIED: A Deeper Dive (Socratic Script) | 157

attorney’s actions, Dr. Momah lost his job, suffered a stroke, and was uninsurable and unemployable.
Id. at 384. The trial court awarded Dr. Momah substantial damages on his outrage claim against the
plaintiffs and their attorney. Id. at 385. The appellate court reversed and concluded that the conduct
was insufficient to constitute outrage. Id. at 390.
¶ 33 We contrast Saldivar with Phillips v. Hardwick, 29 Wash. App. 382 (1981). There, the Phillips
agreed to purchase the Hardwicks’ house and entered into an earnest money agreement. Id. at 384.
The Hardwicks later learned that their new house would not be ready until shortly after the agreed
closing date of November 25. The Phillips agreed to rent the house to the Hardwicks until December
1. The Hardwicks did not vacate as agreed. On December 2, the Hardwicks told the Phillips that
because the y were tenants, the Phillips were powerless to remove the m. The Phillips drove by the
house on De cember 3. They looked inside, noticed the furniture was gone, and arranged to move in
the following day. The ne xt day, when they arrived with a carload of furniture, the Hardwicks initially
prevented them from moving in. When the Phillips returned with a second carload, they noticed
two deputy sheriffs. Id. at 384-85. The deputies determined that the *295 Phillips had the right of
possession and advised the Hardwicks of this, yet the Hardwicks refused to leave. Id. at 385. The ne xt
day, the Phillips commenced two lawsuits. The first lawsuit was an unlawful detainer, and the se cond
lawsuit sought damages on various theories, including intentional infliction of emotional distress. The
Hardwicks moved out a few days later and gave the keys to the Phillips. In the se cond lawsuit, the
trial court found in favor of the Phillips and awarded them over $11,000. Id. at 383. On appeal, the trial
court affirmed the damages award on the basis that reasonable minds could differ as to whether the
Hardwicks’ conduct was sufficiently outrageous. Id. at 388-89.
¶ 34 We cannot reconcile Saldivar with Phillips. Saldivar involved extreme conduct that caused
extensive emotional and financial damages. Yet, the appellate court reversed the trial court’s finding
of outrage. Phillips involved a few days’ delay in occupancy that caused a mere annoyance to a home
purchaser. Yet, the appellate court affirmed the trial court’s finding of outrage. We disagree with both
decisions.
¶ 35 We find support for our disagreement in Wolf v. Scott Wetzel Servs., Inc., 113 Wash.2d 665 (1989),
which appears to take a middle approach. There, Mr. Wolf lifted a heavy timber at work and injured his
lower back. Id. at 667. He filed a workers’ compensation claim. His employer was self-insured, and Mr.
Wolf’s claim was administered by Scott Wetzel Services, Inc. (SWS). Mr. Wolf received time loss and
medical payments. About six months after the injury, SWS learned from Mr. Wolf’s attending physician
that Mr. Wolf could return to work. As a consequence, SWS closed Mr. Wolf’s claim. A few months later,
Mr. Wolf and his new physician requested the claim to be reopened on the basis that the lower back
injury “‘may have contributed to psychological problems.’” SWS denied the request. Mr. Wolf appealed
the denial and the denial eventually was reversed. Mr. Wolf *296 brought suit against SWS alleging
bad faith denial of his claim and outrage.
¶ 36 In denying Mr. Wolf’s outrage claim, our high court explained:
As illustrative of what constitutes [outrage], … [i]n [an appellate case from California], it
was alleged that an investigator hired by the

insurance

carrier befriended the

claimant,

misrepresenting his true capacity and intentions. Then, during an excursion to Disneyland,
158 | IIED: A Deeper Dive (Socratic Script)

the

investigator enticed the

claimant into crossing a rope

bridge and engaging in other

physically demanding activities. Unbeknownst to the claimant, another investigator filmed her
while she did so. Upon discovering at a subsequent hearing how she had be en deceived, the
claimant suffered a physical and mental breakdown requiring hospitalization. We agree that
such conduct is indeed outrageous under the standard adopted by this court.
The same cannot be said for the conduct involved in the present case. … The facts … in the present
case in no way suggest that the claims administrator for the self-insured employer engaged in conduct
that could constitute the tort of outrage. Furthermore, … Mr. Wolf is alleging only “bad faith” in the
5

administration of his workers’ compensation claim. Id. at 678-79 (footnote omitted).
¶ 37 As the cases reflect, what constitutes outrage is nebulous and difficult to define. But three things
are cle ar. First, to impose liability, the law requires the conduct to be so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency as to be utterly intolerable in
a civilized community. [c] Second, liability may not be impose d for mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities. Strong, 147 Wash. App. at 386; Snyder, 98 Wash.
App. at 321-22. And third, somewhere be tween these standards, *297 the question of liability passes
from a court of law to the trier of fact. Robel, 148 Wash.2d at 51.
¶ 38 Had Mr. Patnode remote-started his truck occasionally to scare passing piano students, this
would not be actionable. Rather, it would constitute a mere annoyance—a triviality. But this is not
what Mr. Patnode did. Instead, he engaged in a course of conduct over a period of four months
intending to cause Ms. Spicer sufficient emotional distress so she would stop teaching piano lessons
at her house. He intended to achieve through harassment what he had be en unable to achieve through
legal means. In order to achieve his purpose , he kne w he had to cause Ms. Spicer severe emotional
distress. And he did.
¶ 39 The dissent classifies this conduct as merely childish. We disagree. The conduct—because it
occurred frequently over a period of months—clearly exceeds insults, indignities, threats, annoyances,
petty oppressions, or other trivialities. We believe a trier of fact could consider the conduct to be
so outrageous in character, and so extreme in degree, as to be utterly intolerable in a civilized
community. For this reason, the question of liability passes from us to the trier of fact.
3. SEVERE EMOTIONAL DISTRESS
¶ 40 Mr. Patnode argues substantial evidence does not support the trial court’s finding that Ms. Spicer
suffered severe emotional distress. We disagree.
¶ 41 We will not overturn a trial court’s finding of fact if it is supported by substantial evidence. [c]
Substantial evidence is that amount of evidence sufficient to persuade a fair-minded person that a
given premise is the truth. [c]

5. The Wolf court’s analysis comports with the various illustrations contained in the Restatement (Second) of Torts § 46.
Whereas the conclusions reached in the intermediate appellate decisions in Strong and Snyder do not comport with the
illustrations.
IIED: A Deeper Dive (Socratic Script) | 159

¶ 42 To prevail on an outrage claim, a plaintiff must show that he or she actually suffered severe
emotional distress as a result of the defendant’s conduct. *298 [c] Mr. Patnode first argues that
regularly and repeatedly remote-starting his F-250 over the course of four months, revving its engine,
and activating its alarm could not have caused a reasonable person to suffer severe emotional distress.
We disagree. It was Mr. Patnode’s objective to cause Ms. Spicer to suffer sufficient emotional distress
so she would stop teaching piano lessons at her house. This objective could not be accomplished by
mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Mr. Patnode’s
argument that Ms. Spicer could not have suffered severe emotional distress runs counter to his
objective. If he did not think his conduct would accomplish his objective, he would not have engaged
in it.
¶ 43 Mr. Patnode ne xt argues no one could believe his conduct could reasonably cause Ms. Spicer to
fear for her safety. We disagree. One of the parents testified that Mr. Patnode’s conduct made her
scared and concerned for her children’s safety.
¶ 44 Mr. Patnode, citing Sutton v. Tacoma School District No. 10, 180 Wash. App. 859 (2014), argues
that Ms. Spicer’s symptoms of stress and insomnia were insufficient to constitute e xtreme emotional
distress. There, a teacher pinned a first grade spe cial education student against the wall and cornered
her by chest-bumping her while yelling insults at her. Id. at 863. The child’s grandmother witnessed
the incident. She testified that the child was scared, angry, sad, and mad, and did not want to
return to the te acher’s class. Id. at 872. We held that this evidence was sufficient to constitute
emotional distress. However, there

was no evidence

of how long the emotional distress lasted.

Because actionable outrage requires emotional distress that is more than transient, we affirmed the
trial court’s summary judgment. Id. at 874.
¶ 45 Sutton is distinguishable. Here, Ms. Spicer suffered emotional distress throughout Mr. Patnode’s
four-month course of conduct.
*299 ¶ 46 Affirmed.
[Dissent] Korsmo, J.
Outrageous conduct is conduct “which the recitation of the facts to an average member of the
community would arouse his resentment against the actor and lead him to exclaim ‘Outrageous!’” Reid
v. Pierce County, 136 Wash.2d 195, 201-02 (1998) (quoting Browning v. Slenderella Sys., 54 Wash.2d 440,
448 (1959) (quoting RESTATEMENT (SECOND) OF TORTS § 46(g) (AM LAW INST. 1965))). As the court
more recently stated:
The conduct must be “‘so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community.’” [cc]
¶ 47 The main element of an outrage claim is, of course, outrageous behavior. Remote starting a car or
setting off a car alarm when someone is walking past simply is not atrocious conduct, nor is it “utterly
intolerable in a civilized community.” Mr. Patnode’s behavior was juvenile, childish, oafish, puerile,

160 | IIED: A Deeper Dive (Socratic Script)

immature, infantile, and lame. It would not have e ven qualified as a bad junior high school prank in a
less sophisticated time. He was annoying, but he was not outrageous.
¶ 48 Washington requires more than this simplistic behavior to satisfy the threshold requirements
for the tort of *300 intentional infliction of emotional distress. The definition of the tort is found in
6

RESTATEMENT § 46:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such emotional distress, and if bodily
harm to the other results from it, for such bodily harm.
(2) Where such conduct is directed at a third person, the person is subject to liability if he
intentionally or recklessly causes severe emotional distress
(a) to a member of such person’s immediate family who is present at the time, whether or not
such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily harm.
Ms. Spicer’s action proceeded under § 46(2)(b), meaning that she had to show that outrageous conduct
directed at third persons in her presence resulted in bodily harm. While the remaining elements
were established, the outrageous conduct element was not. She faile d to meet the required threshold
showing. Jackson v. Peoples Federal Credit Union, 25 Wash. App. 81, 84 (1979).
¶ 49 In Jackson, the plaintiff sued in outrage be cause the credit union had attempted to repossess
his car at his place of work after a dispute arose over loan repayment; the incident aggravated his
diabetes, a condition known to the credit union. Id. at 83-84. Division Two of this court rejected the
outrage claim, de termining that the behavior of the credit union failed to meet the “extreme and
outrageous” standard of the tort. Id. at 84 (quoting RESTATEMENT § 46 cmt. h).
¶ 50 Proof of outrageous behavior is the sine qua non of this tort. There is no e xception for the
intentional infliction *301 of distress by nonoutrageous behavior. While the ste ady dripping of small
amounts of water may erode a foundation just as effectively as a deluge, this tort is only concerned
with the latter possibility. Behavior must be beyond the pale to be actionable.
¶ 51 Our case law long has reached that same conclusion. Infliction of emotional distress by intentional
behavior is by itself inadequate to establish this tort. We have found far more offensive behavior than
noisy car alarms and remote vehicle starting insufficient to establish outrageous behavior. E.g., Repin
v. State, 198 Wash. App. 243 (2017) (holding that veterinarian’s unsuccessful attempt at euthanasia,
failure to warn of risks, and the dog’s immense suffering not sufficiently outrageous); Christian v.
Tohmeh, 191 Wash. App. 709, 737-38 (2015) (doctors; course of conduct—obfuscation of plaintiff’s
diagnosis, yelling and shouting at her and telling her problems were in her head; telling other doctors
that her emotional issues made her history less valid—insufficient to meet the “extremely high”

6. No Washington court has applied the Restatement (Third) of Torts § 46, so, like the majority, I will confine my remarks to
the Restatement (Second). It should be noted that comment i in the Second Restatement is now found as comment h in
the Third Restatement.
IIED: A Deeper Dive (Socratic Script) | 161

standard of outrage); Strong v. Terrell, 147 Wash. App. 376, 388-89 (2008) (finding conduct insufficient
where coworker told blonde jokes, ridiculed plaintiff’s personal life, called her a bum, and made other
disparaging remarks over the course of several years). Saldivar v. Momah, 145 Wash. App. 365 (2008)
(holding that filing suit against physician with malicious intent is not “‘utterly intolerable in a civilized
community’”).
¶ 52 While no prior Washington case has be en based on car noises, a couple of Ohio cases have
rejected the notion that such behavior is outrageous. Krlich v. Clemente, 2017-Ohio-7945, 98 N.E.3d
752, 757, 759 (Ct. App.) (finding car horn honking “at all hours of the day and night,” alleged lewd
gestures, and more (such as paintballing plaintiff’s home and driving on their lawn) not sufficiently
extreme and outrageous for intentional infliction of emotional distress); *302 Allen v. Pirozzoli, No.
103632, 2016-Ohio-2645, 2016 WL 1600344 (Ct. App. Apr. 21, 2016) (unpublished) (conduct of setting
off fireworks, standing in his driveway when plaintiff would pull in the driveway, horn honking,
banging on fence and windows, revving motorcycle in front of plaintiff’s house insufficient to establish
7

outrageousness).

¶ 53 Mr. Patnode is cle arly a bad neighbor, but he also is bad at being an outrageous one. Although
the trial court’s desire to punish him for his conduct is understandable, and appreciated by this
writer, that conduct simply does not make the grade for the tort of outrage. He intentionally inflicted
emotional distress, but did so in a bland enough manner that this particular claim was not actionable.
This was harassment pure and simple. Since the majority rewrites the tort of intentional infliction of
emotional distress by treating the outrageous conduct element as a question of fact for the trier-offact, I respectfully dissent.
Note 1. Are you more persuaded by the majority or dissenting opinion? What do you observe about
their uses of precedent?
Note 2. At least one scholar has called for a sex-based approach to understanding emotional harm in
the context of tort law. Betsy J. Grey, Sex-Based Brain Differences and Emotional Harm, 70 Duke L.J.
Online 29, 55–56 (2020) Grey cautions against biological determinism (which is a phrase conveying the
idea that people are the way they are base d on their biological or genetic composition, which in the
context of gender would mean a narrow understanding of gender as defined by biological sex). Grey
surveys feminist approaches to tort law including the success of the “reasonable woman” standard
successfully introduced in hostile workplace litigation. In spite of her cautions, she concludes on a
note of optimism about the viability of future uses of scientific evidence to demonstrate biological
differences with respect to gender and emotional harm which, she argues, could potentially possess
legal relevance. Another scholar has advocated for uses of biological theories of behavior and trauma
to ground IIED in objectively verifiable e xperiences. Cristina Carmody Tilley, The Tort of Outrage and
Some Objectivity About Subjectivity, 12 J. Tort L. 283, 291 (2019).
Note 3. Does IIED need to be “reined in” in your view? Or is it serving its purpose as the last-

7. Unpublished Ohio opinions may be cited as authority in that state. See OHIO SUP. CT. REP. OP. R. 3.4. Thus, they may be
relied on in this state. GR 14.1(b).
162 | IIED: A Deeper Dive (Socratic Script)

added intentional tort aiming to capture different kinds of harms? One scholar has described IIED as
more accurately understood as a “family of torts loosely captured through the notion of outrageous
conduct” than a single tort. Benjamin C. Zipursky, Snyder v. Phelps, Outrageousness, and the Open
Texture of Tort Law, 60 DePaul L. Rev. 473, 503 (2011) Do you agree?

Expand On Your Understanding – Socratic Script: Spicer v. Patnode

Question 1. What was the legal issue in this case? How would you formulate the rule?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=45#h5p-39

Question 2. What was the holding in this case?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=45#h5p-40

Question 3. The majority writes that “what constitutes outrage is nebulous and difficult to define. But
three things are clear.” What are those three things, and how do they relate to the facts of this case? How
does that relate to the holding?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=45#h5p-41

Question 4. The tort of outrage has 3 elements in Washington state:
(1) extreme and outrageous conduct,
(2) intentional or reckless infliction of emotional distress and
(3) “actual result to plaintiff of emotional distress.”
All three elements are questions of fact yet the court nonetheless reviews Mr. Patnode’s conduct in light
of the legal standard and surveys the cases in Washington state. It does so even though it generally
accepts the findings of fact of the lower court. Why?

IIED: A Deeper Dive (Socratic Script) | 163

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=45#h5p-42

Question 5. Please briefly summarize the dissent’s argument from Spicer. Where the dissent relies
on Jackson v. Peoples Federal Credit Union, what is the analogy that it attempts to draw? Is that analogy
persuasive? Why or why not?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=45#h5p-43

Reflect on Your Understanding – Spicer v. Patnode
The town of Selah, Washington, where parts of the dispute took place, recently came under fire for
allegedly not being welcoming to people of color. In the wake of Black Lives Matter protests in the
summer of 2020, town residents clashed over the ability to express messages of solidarity in sidewalk
chalk: https://www.nytimes.com/2020/07/16/us/sidewalk-chalk-police-selah-washington.html
If it turned out to be true that the region was historically inhospitable to people of color, would that
be relevant to your analysis of the facts in Spicer v. Patnode? How and why if so?

164 | IIED: A Deeper Dive (Socratic Script)

12. Trespass to Chattels and Conversion
Elements of Trespass to Chattels
1. Intent
2. To use or intermeddle with the chattel of another or to dispossess the other of their chattel
3. Without permission or justification, and which
4. Causes harm to or destruction of the chattel or causes a substantial interference with the
possessor’s use of the chattel
Elements of Conversion
1. Intent
2. To exercise dominion or control over a chattel
3. Which dispossesses or deprives its owner permanently or indefinitely
“Chattels” means “personal property” (as opposed to “real property” like land or intellectual property
like patents, copyright or trademarks). Chatte ls include animals: the law treats pets as well as livestock
as chattels. Chattels do not include cash; generally, chattels are “things.”
The trespass in the tort’s name refers to the intentional use of another’s chattel or interference
without permission or justification for the

use

or interference
, resulting in destruction or

demonstrable harm. The tort of conversion conceptualizes the harm more broadly: it is the ownership
interest that has been violated because the de fendant has “exercised control” over the plaintiff’s
property.
The tort of trespass to chattels is somewhat similar to the interest we protect through battery: a right
to be free from physical invasions, except the interest here is narrower. Recall that battery did not
require proof of harm and even a “beneficial” invasion could be a battery if unconsented. The interest
protected through battery was the inviolability of the body. Similarly, the interest protected through
the tort of trespass to land is the inviolability of the ownership of land. Conversion is more similar to
battery and trespass to land in that protects a broader interest than mere harm to stuff: it protects
the inviolability of one’s ownership right. Consequently, a plaintiff who can show that their ownership
right has been interfered with in the defendant’s exercising control over the plaintiff’s chattel will not
have to prove harm. Just as was the case with battery, making out the elements proves the invasion of
the interest and it is the invasion of the interest that constitutes the harm.
The intent required for both of these personal property torts is similar to the intent for battery:
simply using or “interfering” with the chattel, even without any knowledge that one is interfering
with another’s possessory interest, is enough; specific intent to invade another’s interest is not
necessary. (Distinguish this from false imprisonment, which requires the specific intent to confine.)
The trespassory use must be substantial; it would trivialize the judicial system if mere annoyances
over objects of common use were litigable.
Trespass to Chattels and Conversion | 165

Trespass to chattels is sometimes helpful in pursuing a claim for another’s intentionally harming one’s
animals. However, when serious damage to personal property, including animals, occurs, the tort of
conversion is the usually the more appropriate action to bring and as a matter of practice, the two
torts are often brought together as alternative the ories of liability. While conversion requires a higher
showing with regard to the defendant’s conduct, if the plaintiff can successfully plead it, the plaintiff
need not prove harm. By contrast, to succeed in an action for trespass to chattels, the plaintiff must
prove the alleged harm or destruction to the chattels. Note that causing the value of the chattel
to drop counts as “harm” to the chattel. The plaintiff can recover for all the harm to the chattel and
incidental damages the unauthorized use causes. The measure of damages is the market value at the
time of the dispossession or intermeddling.
For example, if a person borrows their roommate’s car without permission and returns it safely
without damage, there has be en no trespass to chattels so long as the owner did not suffer as a result
of not having it available during the time of the roommate’s use. Trespass to chattels would require
that the driver harm the car or that the owner need the car and be unable to use it during the spe cified
time of the unauthorized use. If the owner needed it for some purpose and had to take a cab instead
of driving, for instance, or missed an opportunity for a job interview, the damages from the tort could
compensate for those harms even if the car was not damaged.

Grosch v. Tunica County, Mississippi et al, U.S. District Court, N.D. Miss.,
Delta Div. (2008)
(569 F. Supp.2d 676)
[Adam Grosch, a gambler, brought claims of trespass to chattels and conversion against the Hollywood
Casino Corporation, where

he

had be e
n a patron, and the

Mississippi Gaming Commission; the

Commission moved to dismiss the plaintiff’s claims for lack of subject matter jurisdiction pursuant to
Fed. R. Civ. P. 12(b)(1) arguing that such claims are within the e xclusive jurisdiction of the Mississippi
Gaming Commission pursuant to Mississippi statutes.]
“The difference be tween trespass to chattels and conversion is primarily one of degree. Trespass to
chattels in modern tort law involves interference or damage that is of a less serious or substantial
nature. Conversion claims involve substantial interference or damage. Otherwise the elements are
the same. Conversion is by far the more important of the two torts.” [c] To prevail on a claim of
trespass to chattels, a plaintiff “must establish *678 that there has be en an unauthorized interference
with his possession of personal property, or an unauthorized use of his personal property.” [c] “If
the interference is of such a substantial nature that the defendant can justly be compelled to pay
the entire value of the chattel, the plaintiff’s remedy is an action for conversion.” [c] “[T]here is
a conversion only when there is an ‘intent to exercise dominion or control over goods which is
inconsistent with the true owner’s right.’ While intent is necessary, it need not be the intent of a
wrongdoer.” [c]
The Se cond Amended Complaint does not specifically delineate the plaintiff’s case the ory regarding
166 | Trespass to Chattels and Conversion

his claims for trespass to chattels and conversion. The court surmises from the factual background
and the briefs that the plaintiff alleges that the defendants exercised dominion and control over his
property—i.e., the mone y that is represented by the casino chips he undispute dly won—which were
inconsistent with his ownership rights because the de fendants would not cash in his chips unless
and until the plaintiff handed over his driver’s lice nse to the casino. The plaintiff argues that the
defendants had no right to require that he relinquish dominion and control of his ID to the casino for
any purpose other than simply verifying his identity.
In the instant motion, the Hollywood Casino characterize s the dispute as one whe rein the plaintiff
looked to be under twenty-one years of age and that they simply wanted his ID to verify his age. The
plaintiff argues that they already knew he was over twenty-one, since he had a player’s card and would
not have be en allowed in the area where he gamble d. Furthermore, the plaintiff alleges that he did not
refuse to prove his age by showing his ID but rather refused to physically give it to the casino because
he feared they would copy his ID and send it to other casinos as a warning that the plaintiff was a card
counter.
Hollywood’s primary argument is that the claims of trespass to chattels and conversion should be
dismissed because the y are within the e xclusive jurisdiction of the Mississippi Gaming Commission
since the y involve a “claim by a patron … for payment of a gaming debt” pursuant to § 75–76–157(2)
of the Mississippi Gaming Control Act. Hollywood cites Grand Casino Tunica v. Shindler, 772 So.2d
1036, 1038 (Miss. 2000) for the proposition that the Mississippi Gaming Commission has e xclusive
jurisdiction over “all gaming matters” and that the trespass to chattels and conversion claims are
“gaming matters.”
The court disagrees. [***] The Mississippi Supreme Court has recently indicated that “all gaming
matters” means “gaming debts” in relation to § 75–76–157. In Ameristar Casino Vicksburg, Inc. v.
Duckworth, 990 So.2d 758, 2008 WL 2447274 (Miss. June 19, 2008), the Court concluded that a dispute
involving a raffle at a casino was not within the jurisdiction of the Mississippi Gaming Commission
because the dispute did not involve a game of gambling or a “gaming debt” pursuant to § 75–76–157.
[***] If Hollywood were correct that the gaming commission enjoys exclusive jurisdiction over “all
gaming matters” when defined expansively as “any dispute that would not exist but for participation
in gambling,” then, in theory, all of the plaintiff’s remaining Mississippi-law causes of actions—i.e., false
arrest, false imprisonment, abuse of process, and malicious prosecution—would also be within the
exclusive jurisdiction of the gaming commission. Section 75–76–157(2) by its plain language cle arly
does not indicate this. Rather, it confines its reach to claims involving payment of gaming debts.
The plaintiff in the instant case argues that his trespass to chattels and conversion claims are not
claims for gaming debts since he is not asse rting “[a] claim … for payment of a gaming debt” per §
75–76–157(2) because he in fact received his money. Rather, the focus of his claims, he argues, is on the
unlawful withholding of his undisputed winnings unless and until he turne d over his other personal
property—i.e., his identification—to the control and dominion of the defendants. The plaintiff alleges
that he ne ver agreed to hand over his ID to the casino and they would not have received and copied it
but for the actions of the Tunica County Sheriff’s Department in taking his ID from him.
The court is persuaded that this understanding of the plaintiff’s trespass to chattels and conversion
Trespass to Chattels and Conversion | 167

claims takes them out of the realm of seeking payment for a gaming debt. Therefore, the gaming
commission does not have exclusive jurisdiction over these claims pursuant to § 75–76–157(2).
[***] Motion to dismiss the plaintiff’s claims for trespass to chattels and conversion for lack of subject
matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) is DENIED.
Note 1. What is the chattel with respect to which the plaintiff alleges he has been dispossessed?
Note 2. At trial, Grosch did indeed prevail on his personal property claims. However, he also brought
numerous claims against the casino as well as the County, including violation of his Fourth and
Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983 as well as claims of false arrest, false
imprisonment, abuse of process, malicious prosecution and violation of state constitutional rights.
Grosch was able to provide e vidence that the casino and the Sheriff routinely engaged in some form of
collusion involving the stratagem of the casino’s refusing to hand over winnings unless players yielded
their ID cards and the casino and Sheriff unlawfully detaining players.
The jury found the Hollywood casino was liable for conversion and trespass to chattels and awarded
$925.00, the cash value of the chips Grosch had won and that the casino had refused to cash for him
unless he handed over his license. The award was upheld on appeal even though by that point Grosch
had been forced to hand over his ID and had received the value of his chips. The award was given to
reflect the interference with his possessory interest, not to compensate him for the e xact value of
the chips. He also sought punitive damages and the jury found, by clear and convincing evidence, that
“Hollywood casino should pay punitive damages for the plaintiff’s § 1983 claim and his state-law claims
for false imprisonment, malicious prosecution, abuse of process, conversion, and trespass to chattels
in a total amount of $600,500.00.” This amount was also upheld on appeal. Grosch v. Tunica Cty., Miss.,
2009 WL 161856, at *1 (N.D. Miss. Jan. 22, 2009).
Note 3. Effect of Mistake. Note that mistaken beliefs regarding the chattel are not usually a defense.
If in Grosch the casino had reasonably confused his chips with another player’s, it would not alter the
liability analysis unless the casino rectified its error immediately. Even a good-faith use of a chattel
can satisfy the elements of both of the personal property torts if the belief is unreasonable in its
mistake. When the mistake is reasonable—such as when a patron takes the wrong black suitcase at
the airport or the wrong black umbrella from a restaurant—whether liability attaches will depend on
how quickly they discover and rectify the error.
Note 4. Trespass to chattels is a somewhat old-fashioned tort in that it is typically an action for
damage to compensate for the costs of repairing or replacing property, which is often not worth
bringing a lawsuit to redress. For some time , the use of trespass to chattels had fallen out of favor.
However, in the internet era, the tort experienced a revival when the tort was mobilized to address
unwanted commercial email such as spam, unwanted faxes, and “spiders” or automatic programs
that search the internet and were he ld to be trespassing various database servers. Laura Quilter, The
Continuing Expansion of Cyberspace Trespass to Chattels, 17 Berkeley Tech. L.J. 421 (2002). For example,
in eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000), the online auction site was held
to be likely to prevail, for purposes of obtaining a preliminary injunction, against an online auction

168 | Trespass to Chattels and Conversion

aggregating site which was conducting automated searches of the plaintiff’s site without permission
given evidence that the defendant’s searches diminished the value of the plaintiff’s site.
“[T]he electronic signals generated by the [defendants’] activities were sufficiently tangible to
support a trespass cause of action.” [***] In order to prevail on a claim for trespass based on
accessing a computer system, the plaintiff must establish:
(1) defendant intentionally and without authorization *1070 interfered with plaintiff’s
possessory interest in the computer system; and (2) defendant’s unauthorized use proximately
resulted in damage to plaintiff. Id. at 1069-70.
The use of trespass to chattels to address this new source of harm (and annoyance) reflects one of the
ways in which tort law adapts to changing social, technological and economic circumstances.

Luis v. Smith Partners & Associates Ltd., U.S. Dist Ct., N.D. Illinois,
Eastern Division (2012)
(2012 WL 5077726)
*1 Plaintiffs Maria Luis and Lucy Gomez brought this lawsuit against Defendants Smith Partners &
Associates, Ltd., Smith REO Properties, Coya Smith, and Andy Horn, alleging violations of Title VIII of
the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988 (“Fair Housing
Act”), 42 U.S.C. § 3601 et seq., [***] and Illinois law. Doc. 1. Defendants have moved to dismiss all claims
under Federal Rule of Civil Procedure 12(b)(6). The motion is granted in part and denied in part. [***]
Plaintiffs reside at 5818 North Spaulding in Chicago, Illinois (“Property”). Doc. 1 at ¶ 5. [Editor’s note:
All remaining references to the record omitted] Smith Partners and Associates, Ltd ., which operates
under the assumed name Smith REO Properties, is a corporation that owns and manages residential
properties. Smith Partners managed the Property throughout the relevant time period. Smith owns
and operates Smith Partners. Horn is an agent of Smith Partners.
Beginning in Winter 2010, Defendants undertook a campaign of threats and harassment intended to
force Plaintiffs to leave the Property. Defendants targeted Plaintiffs because the y are Hispanic and in
the belief that Hispanics are unwilling to defend themselves through the legal system. Horn entered
the Property’s basement at some point in Winter 2010 and removed the furnace, causing the pipes to
freeze. In November 2010, Horn padlocked the front door, which prevented Plaintiffs from entering
the residence. In Spring 2011, Horn banged on the windows and doors and removed letters from the
mailbox that were addressed to Plaintiffs. In May 2011, Horn entered the basement and removed most
of its contents, including the furnace that Plaintiffs bought to replace the one that Horn had removed.
In August 2011, Horn had the electricity and water disconnected; while doing so, Horn entered the
Property and struck Gomez with the intent of intimidating Plaintiffs into vacating the property. In
March 2012, Horn broke the locks to the front doors of each apartment at the Property. Horn did all of
this at the request of Smith, his boss. On April 17, 2012, the City of Chicago turned off the water due to
non-payment by Defendants.
Trespass to Chattels and Conversion | 169

I. Fair Housing Act (Count I)
*2 The Fair Housing Act prohibits discrimination against “any person in the terms, conditions, or
privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection
therewith, because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(b).
The Act also makes it unlawful to “coerce, intimidate, threaten, or interfere with any person in the
exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having
aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected
by section 3603, 3604, 3605, or 3606 of this title.” 42 U.S.C. § 3617. The Act governs conduct regardless
of whether it occurs before or after a tenant or owner has acquired a property interest in a dwelling.
[c]
To survive a motion to dismiss, a Fair Housing Act claim must allege discrimination related to the
terms, conditions, privileges, or provisions of services of a dwelling. [cc] A claim also must plead
the type of discrimination that occurred, by whom, and when. [cc] Here, Plaintiffs allege the type of
discrimination that occurred (race or national origin), by whom (Smith, Horn, and Smith Partners), and
when (from Winter 2010 through April 2012). These allegations are sufficient to survive a Rule 12(b)(6)
motion. [cc] [***] [Editor’s note: Count II, a RICO claim, is omitted]
III. State Law Claims
A. Trespass to Chattel/Conversion (Count III)
Although the complaint labels Count III “Trespass to Chattel,” Plaintiffs’ brief recharacterizes the claim
as one for conversion. Count III survives regardless of whether it is viewed as a trespass to chattel
claim or a conversion claim. Under Illinois law, trespass to chattel is “injury to or interference with
possession, with or without physical force … to personal property.” [c] “A trespass to a chattel may be
committed by intentionally (a) dispossessing another of the chattel, or (b) using or intermeddling with
a chattel in the possession of another.” Ibid. (quoting Restatement (Second) of Torts § 217 (1965)). The
complaint alleges that Defendants stole Plaintiffs’ furnace, depriving them of its use. The complaint
also alleges that Defendants locked the basement so that Plaintiffs could not access it or its contents.
This is sufficient to state a trespass to chattel claim. See Matthews v. Homecoming Fin. Network, 2005
WL 2387688, at *8 (N.D.Ill. Sept.26, 2005) (allegation that the “defendants forcibly entered [plaintiff’s]
home without his consent and changed the locks” are sufficient to state a trespass to chattel claim).
“Any unauthorized act by which an owner is deprived of his property permanently or indefinitely, or
the e xercise of dominion over property inconsistent with the rights of the owner, [is] a conversion.”
[***] Because Plaintiffs allege a permanent deprivation of property in their possession caused by
Defendants’ unauthorized acts, they have pleaded a plausible conversion claim.
B. Battery (Count IV)
To state a battery claim under Illinois law, a plaintiff must allege that the defendant engaged in “the
wilful touching of the person of another” and “intend [ed] to cause a harmful or offensive contact.”
[cc] The complaint alleges that “Horn entered the property illegally, threatened Plaintiffs, and struck
Plaintiff Lucy Gomez,” and that “[t]he battery against Lucy Gomez was intended, through actual
170 | Trespass to Chattels and Conversion

physical force, to intimidate Plaintiffs into vacating the property.” These allegations are sufficient to
state a battery claim. [***]
*7 Defendants submit that the

battery claim cannot proceed against Smith Partners and Smith

because the complaint does not allege that they intended for Horn to commit a battery and because
respondeat superior liability does not attach in these circumstances. The complaint, however, alleges
that Horn was acting within the scope of his agency at all relevant times and that he acted at Smith’s
request. Under settled tort principles, “the employer’s vicarious liability extends to the negligent,
willful, malicious, or even criminal acts of its employees when such acts are committed within the
scope of the employment.” [cc] It follows that the battery claim stands as to Smith Partners and Smith.
C. Intentional Infliction of Emotional Distress (Count V)
To state an intentional infliction of emotional distress claim under Illinois law, a plaintiff must allege
that: (1) the defendant’s conduct was extreme and outrageous; (2) the defendant either intended to
inflict severe emotional distress or knew that there was a high probability that his conduct would do
so; and (3) the defendant’s conduct actually caused severe emotional distress. [cc] [***]
Here, Plaintiffs allege that Defendants took advantage of their role as property managers to perpetrate
a pattern of harassing and intimidating conduct, including conduct as extreme as removing Plaintiffs’
furnace during a Chicago winter. The sole alle ged purpose of these alleged actions was to drive
Plaintiffs from the Property, and Plaintiffs suffered emotional distress as a result. “An important factor”
in intentional infliction of emotional distress claims “is whether a defendant abused a position of
authority.” [c] Plaintiffs have alleged sufficient facts to state a plausible emotional distress claim.
D. Chicago Residential Landlord and Tenant Ordinance (Count VI)
*8 The Chicago Residential Landlord and Tenant Ordinance (“RLTO”) provides in relevant part as
follows:
It is unlawful for any landlord or any person acting at his direction knowingly to oust or
dispossess or threaten or attempt to oust or dispossess any tenant from a dwelling unit
without authority of law, by plugging, changing, adding or removing any lock or latching
device; or by blocking any e
ntrance

into said unit; or by removing any door or window

from said unit; or by interfering with the services to said unit; including but not limited to
electricity, gas, hot or cold water, plumbing, heat or telephone service; or by removing a
tenant’s personal property from said unit; or by the removal or incapacitating of appliances or
fixtures, except for the purpose of making necessary repairs; or by the use or threat of force,
violence or injury to a tenant’s person or property; or by any act rendering a dwelling unit or
any part thereof or any personal property located therein inaccessible or uninhabitable.
Chicago, Ill., Municipal Code

§ 5–12–160. The

complaint alleges that Defendants sought to oust

Plaintiffs by removing their furnace, padlocking the Property’s front door, turning off their hot water
heater, and breaking their locks. Such acts violate § 5–12–160 of the RLTO, so the viability of Count VI
turns on whether the relationship between Plaintiffs and Defendants is governed by the ordinance.

Trespass to Chattels and Conversion | 171

Defendants argue that by not alleging the e xistence of a valid lease agreement, the complaint fails
to adequately plead that Plaintiffs are “tenants.” The argument does not carry the day. Although the
complaint does not expressly allege that Plaintiffs are “tenants,” it alleges that they are “residents” and
refers to the existence of a “tenancy” during the relevant period. This is sufficient at this point to plead
that Plaintiffs are tenants. [***]
E. Statute of Limitations
The battery and intentional infliction of emotional distress claims are governed by a two-year statute
of limitations. See 735 ILCS 5/13–202 (2008); [cc] So, too, is the RLTO claim. See Landis v. Marc
Realty, LLC, 235 Ill.2d 1, 335 Ill.Dec. 581, 919 N.E.2d 300 (Ill.2009). Defendants contend that portions
of these claims are barred on limitations grounds. As noted above, however, the instances of alleged
misconduct all occurred within two years of the complaint’s filing. Defendants’ contention accordingly
has no merit. [***]
Defendants also contend that Smith is not liable for any torts committed by Smith Partners or Horn.
As noted above, the complaint alleges that Horn undertook his tortious actions at Smith’s request and
as an agent of Smith Partners. “It is well established that traditional vicarious liability rules ordinarily
make principals or employers vicariously liable for acts of their agents or employees in the scope of
their authority or employment.” [cc] This is true “even if the principal neither authorized nor ratified
the acts.” [c] It follows, at least at the pleading stage, that Smith is a proper defendant.
*10 [The court denied the motion to dismiss as to Counts I, III, IV, V and VI].
Note 1. Give n the ample e vidence of multiple kinds of tortious conduct in this case, does it surprise
you that the defendants fought it rather than settling? What was behind their litigation strategy, do
you think?
Note 2. Tort law is available to remedy numerous harms the plaintiffs suffered on these facts. But
should tort law be the appropriate remedy in a case like this one ? Why or why not? Should tort law
be ne cessary if the Fair Housing Act and municipal laws already proscribe the kinds of acts in which
the defendant engaged? What does tort law add? What are the costs of using tort law to remedy these
wrongs?

U.S. v. Hatahley, U.S. Court of Appeals Tenth Circuit (1958)
(257 F.2d 920)
This case is before us for the se cond time. It was brought by the plaintiffs, who are Indians of the
Navajo tribe, under the provisions of the Federal Tort Claims Act (28 U.S.C.A. §§ 1346(b) and 2671
et seq.), to recover $100,000 as damages for the loss of horses and burros which they allege were
wrongfully and unlawfully seized and destroyed in the State of Utah by agents of the United States
Bureau of Land Management. The trial court found for the plaintiffs and entered a lump sum judgment
of $100,000. We reversed on the grounds that the horses and burros in question had been lawfully
172 | Trespass to Chattels and Conversion

seized and disposed of under the Utah ‘abandoned horse’ statute. *922 Utah Code Ann.1953, Title
47, Chapter 2. We did not consider the question of liability under the Federal Tort Claims Act, or
the sufficiency of the findings as to damages. United States v. Hatahley, 10 Cir., 220 F.2d 666. The
United States Supreme Court reversed, and held that the provisions of the Federal Range Code
must be complied with before local procedures may be resorted to for the removal of trespassing
livestock from the public range. It was also held that the acts of the government agents ‘were wrongful
trespasses not involving discretion’, which gave rise to a claim compensable under the Federal Tort
Claims Act. The case was remanded for specific findings as to damages. Hatahley v. United States, 351
1

U.S. 173, 76 S.Ct. 745, 752, 100 L.Ed. 1065. The factual background is set forth in our former opinion
and that of the Supreme Court, and need not be repeated here.
Upon remand, the District Court took additional evidence on the issue of consequential damages,
and without an amendment of the complaint, entered a judgment against the United States for the
total sum of $186,017.50. The value of each horse or burro taken was fixed at $395; each plaintiff was
awarded $3,500 for mental pain and suffering; and damages were given for one-half of the value of the
diminution of the individual herds of sheep, goats and cattle be tween the date the horse s and burros
were taken in 1952, and the date of the last he aring in 1957. Except as to those relating to specific
damages for each plaintiff, the findings of fact are generally a resume of the e vidence favorable to the
plaintiffs, and inferences which the court thought could be reasonably drawn therefrom. The United
States contends that there were numerous errors in rejecting evidence, limiting cross-examination,
and in disregarding fundamental principles of law. It vigorously insists that there has not be en a fair
and impartial trial as to damages, and that one cannot be obtained except before another Judge.
The parties stipulated as to the number of horses and burros which were taken from each plaintiff in
the range cle arance program. The damage for this wrongful taking is to be de termined by the law of
Utah. In Egelhoff v. Ogden City, 71 Utah 511, the Supreme Court of Utah, in discussing the rule as to
damages in a case of this kind, said:
‘* * * Appellant contends that the me asure of damages in this case is the difference be tween
the market value of the property immediately before and imme diately after the injury. It may
be conceded that such is the proper measure of damages. It has been held by this court that

1. In referring to damages, the Supreme Court said: ‘The District Court awarded damages in the lump sum of $100,000, the
amount sought by petitioners jointly. Apparently this award was based on the value of the horses, consequential
damages for deprivation for use and for ‘mental pain and suffering.’ Under the Federal Tort Claims Act, damages are
determined by the law of the State where the tortious act was committed, 28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b),
subject to the limitations that the United States shall not be liable for ‘interest prior to judgment or for punitive
damages.’ 28 U.S.C. § 2674, 28 U.S.C.A. § 2674. But it is necessary in any case that the findings of damages be made with
sufficient particularity so that they may be reviewed. Here the District Court merely awarded the amount prayed for in
the complaint. There was no attempt to allot any particular sum to any of the 30 plaintiffs, who owned varying numbers
of horses and burros. There can be no apportionment of the award among the petitioners unless it be assumed that the
horses were valued equally, the burros equally, and some assumption is made as to the consequential damages and pain
and suffering of each petitioner. These assumptions cannot be made in the absence of pertinent findings, and the
findings here are totally inadequate for review. The case must be remanded to the District Court for the appropriate
findings in this regard.’ 351 U.S. 182.
Trespass to Chattels and Conversion | 173

the me asure of damages for the destruction of a house is the ‘cost to reproduce it, and the
2

value of its *923 use while that was being done.’ [c]. Cf. Angerman Co., Inc., v. Edgermon, 76
Utah 394. (Personal property not entirely destroyed).
In a recent case the Utah court applied the replacement rule where personal property (poultry) was
destroyed. [cc]
It is true that animals of a particular strain and trained for a special purpose are different from animals
of another strain and not so trained, but that does not mean that they cannot be replaced by animals
similarly developed and trained, or which may be trained after acquisition. Ordinarily
The fundamental principle of damages is to restore the injured party, as nearly as possible, to the
3

position he would have be en in had it not been for the wrong of the other party. [cc] Applying this
rule, the plaintiffs were entitled to the market value, or replacement cost, of their horses and burros
as of the time of taking, plus the use value of the animals during the interim between the taking and
the time they, acting prudently, could have replaced the animals.
The plaintiffs did not prove the replacement cost of the animals, but relied upon a theory that the
animals taken were unique be cause of their peculiar nature and training, and could not be replaced.
The trial court accepted this theory, and relying upon some testimony that a horse or a burro could
be traded among Indians for sheep, goats or cattle worth a stated price, together with the owner’s
testimony of the value, arrived at a market value of $395 per head. No consideration was given to
replacement cost. The court rejected evidence of the availability of like animals in the imme diate
vicinity, and their value. This, we think, was error.
It is true that animals of a particular strain and trained for a special purpose are different from
animals of another strain and not so trained, but that does not mean that they cannot be replaced by
animals similarly developed and trained, or which may be trained after acquisition. Ordinarily every
domestic animal is developed and trained for the purpose to which the owner intends to use it.
This development and training adds to its usefulness and generally increases the market value of the
animal. In arriving at a fair market value of destroyed animals, the court should considered evidence
of the availability of like animals, together with all other elements which go to make up market value.
In proper instances, parties and witnesses may be cross-examined on the subject.
Likewise, we think the court applied an erroneous rule, wholly unsupported by the e vidence, in
arriving at the amount of loss of use damage. There was testimony by the plaintiffs that because of
the loss of their horses and burros they were not able to maintain and look after as much livestock as
they had been able to before the unlawful taking, consequently the size of their herds was reduced.

2. As a general rule, market value is the highest price a purchaser is willing to pay for property, not being under
compulsion to buy, and the lowest price a seller is willing to accept, not being under compulsion to sell. [cc]
3. Restatement of the Law of Torts, Section 912, states the rule as follows: ‘A person to whom another has tortiously caused
harm is entitled to compensatory damages therefor if, but only if, he established by proof the extent of such harm and
the amount of money representing adequate compensation with such certainty as the nature of the tort and the
circumstances permit.’
174 | Trespass to Chattels and Conversion

If the unlawful taking of the animals was the proximate cause of the herd reductions, the me asure of
damages would be the loss of profits occasioned thereby. [c]
*924 Applying the

same

formula to all plaintiffs, the

court, without giving consideration to the

condition, age or se x of the animals, found the value of the she ep and goats in 1952 to be $15 per head,
the cattle to be $150 pe r he ad. The number of sheep, goats and cattle which e ach plaintiff had in 1952,
as well as the number which each had at the date of the last he aring was established. This difference
was multiplied by $15, in the case of sheep and goats, and by $150, in the case of cattle, and judgment
was entered for one-half of the amount of the result. No consideration was given to the disposition
of the livestock by the plaintiffs in reducing the herds. For example, the plaintiff Sakezzie had 600
sheep and goats and 101 head of cattle when his horses and burros were taken in 1952. At the date of
the last he aring in 1957, he had 160 he ad of sheep and goats and 39 head of cattle. The dollar value of
the difference at $15 per head for the she ep and goats, and $150 per head for the cattle, amounted to
$15,900. The court found ‘that approximately fifty percent of this amount represents damages to the
plaintiff proximately caused by deprivation of the use of plaintiff’s horses, and on this basis plaintiff is
entitled to recover $7,950.00 as consequential damages resulting from such deprivation’. The result,
insofar as it related to use damage, was arbitrary, pure spe culation, and clearly erroneous. In United
States v. Huff, 5 Cir., 175 F.2d 678, a case where the me thod of computing damages for loss of sheep
and goats was strikingly similar to that used here, the court said:
‘Moreover, there has be en no sufficient showing of how much of the damage from the loss
of the she ep and goats was proximately caused by the Government’s failure to maintain and
repair the fences under the lease, and how much of the damage resulted from the various
other causes. There is no testimony whatever as to the specific dates of loss of any of the
sheep and goats, or as to their age, weight, condition and fair market value at the time of the
alleged losses. It therefore be comes patent that the e vidence as to the loss of these animals in
4

each case fails to rise above mere speculation and guess.’ 175 F.2d 680.

Plaintiffs’ evidence indicated that the loss of their animals made it difficult and burdensome for them
to obtain and transport needed water, wood, food, and game, and curtailed their travel for medical
care and to tribal council meetings and ceremonies. Plaintiffs also testified that because of the loss
of their animals they were not able to grow crops and gardens as extensively as before. These were
factors upon which damages for loss of use could have be en based. This does not exclude the right
to damages for loss of profits which may have resulted from reduction of the number of livestock, or
actual loss of the animals, if the unlawful acts of the defendant agents were the proximate cause of the
loss and were proved to a reasonable degree of certainty. [cc] But the right to such damages does not
extend forever, and it is limited to the time in which a prude nt person would replace the de stroyed
horses and burros. The law requires only that the United States make full reparation for the pe cuniary
loss which their agents inflicted.

4. In Graham v. Street, 2 Utah 2d 144, 270 P.2d 456, the Supreme Court of Utah said: ‘The rule is stated in 4 Sutherland,
Damages, 4th Ed., Sec. 1175, as follows: ‘Only such damages are recoverable as are shown with reasonable certainty to
have been sustained. Remote, contingent and conjectural losses will not be considered.’ [c]
Trespass to Chattels and Conversion | 175

The District Court awarded each plaintiff the sum of $3,500 for mental pain and suffering. There is no
evidence that any plaintiff was physically injured *925 when his horses and burros were taken. There
was evidence that because of the seizure of their animals and the continued activity of government
agents and white ranchers to rid the public range of trespassers, the plaintiffs and their families were
frightened, and after the animals were taken, they were ‘sick at heart, their dignity suffered, and some
of them cried’. There was considerable e vidence that some of the plaintiffs mourned the loss of their
animals for a long period of time. We think it quite cle ar that the sum given each plaintiff was wholly
conjectural and picked out of thin air. The District Court seemed to think that because the horse s
and burros played such an important part in the Indians’ lives, the grief and hardships were the same
as to each. The e qual award to each plaintiff was based upon the grounds that it was not possible to
separately evaluate the me ntal pain and suffering as to each individual, and that it was a community
5

loss and a community sorrow.

Apparently the court found a total amount which should be awarded to all plaintiffs for pain and
suffering, and divided it equally among them. There was no more justification for such division than
there would have be en in using the total value of the seized animals and dividing it equally among
the plaintiffs. Pain and suffering is a personal and individual matter, not a common injury, and must
be so treated. While damages for mental pain and suffering, where there has be en no physical injury,
are allowed only in extreme cases, they may be awarded in some circumstances. Restatement of the
Law of Torts, §§ 46, 47; [cc] Any award for mental pain and suffering in this case must result from the
wrongful taking of plaintiffs’ animals by agents of the United States, and nothing else.
As the case must be remanded for a new trial as to damages, we are confronted with the contention
of the United States that it cannot obtain a fair and impartial trial before the same Judge be cause of
his personal feelings in the matter. In our former opinion we had occasion to make some obse rvations
concerning the conduct of the trial. The Supreme Court referred to these observations on the bias
and prejudice of the presiding Judge, and said that the trial was not so improperly conducted as to
vitiate the findings. This statement did not relate to any of the findings as to damages which are under
consideration here. A casual reading of the two records leaves no room for doubt that the District
Judge was incensed and embittered, perhaps understandably so, by the general treatment over a
period of years of the plaintiffs and other Indians in southeastern Utah by the government agents and
white ranchers in their attempt to force the Indians onto established reservations.
This was climaxed by the range cle arance program, with instances of brutal handling and slaughter
of their livestock, which the Court, during trial, referred to as ‘horrible’, ‘monstrous’, ‘atrocious’,
‘cruel’, ‘coldblooded depredation’, and ‘without a sense of decency’. The Court firmly believed that the

5. The court’s finding on this subject is as follows: ‘28. It is not possible for the extent of the mental pain and suffering to be
separately evaluated as to each individual plaintiff. It is evident that each and all of the plaintiffs sustained mental pain
and suffering. Nor is it possible to say that the plaintiffs who lost one or two horses sustained less mental pain and
suffering than plaintiffs who lost a dozen horses. The mental pain and suffering sustained was a thing common to all the
plaintiffs. It was a community loss and a community sorrow shared by all. On this basis, the Court finds and awards the
sum of $3,500.00 to each of the plaintiffs as a fair and reasonable approximation of the mental pain and suffering
sustained by each, as a proximate result of the taking of the horses by the defendant.’
176 | Trespass to Chattels and Conversion

Indians were being wrongfully *926 driven from their ancestral homes, and suggested Presidential
and Congressional investigations to determine their aboriginal rights. He threatened to conduct such
an investigation himself. A public appeal on behalf of the plaintiffs was made for funds and supplies
6

to be cle ared through the Judge’s chambers. From his obvious interest in the case, illustrated by
conduct and statements made throughout the trial, which ne ed not be de tailed further, we are certain
that the feeling of the presiding Judge is such that, upon retrial, he cannot give the calm, impartial
consideration which is necessary for a fair disposition of this unfortunate matter, and he should step
aside.
Plaintiffs’ claims are asserted under the Federal Tort Claims Act. In applying this Act, everyone should
be treated the same. Racial differences merit no concern. Feelings of charity or ideological sympathy
for the Indians must be put to one side . The de ep concern which the executive and legislative
branches of the government should have for the plaintiffs does not justify the court in giving them
any better or worse treatment than would be given to anyone else. As Justice Jackson said in his
concurring opinion in Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 355,
65 S.Ct. 690, 700, 89 L.Ed. 985: ‘The Indian problem is essentially a sociological problem, not a legal
one. We can make only a pretense of adjudication of such claims, and that only by indulging the most
unrealistic and fictional assumptions.’
[***]
Reversed, and remanded for a new trial as to damages only.
Note 1. What did plaintiffs seek in terms of the value of their losses? How did the various adjudicators
calculate the mone tary amounts of the losses suffered? How did the theories of valuation differ,
comparing the judges’ and the plaintiffs’ views?
Note 2. What does the court appear to be concerned about when it writes: “Any award for mental pain
and suffering in this case must result from the wrongful taking of plaintiffs’ animals by agents of the
United States, and nothing else”? What does it suggest was improper or erroneous about the awards
made to the plaintiffs?
Note 3. This dispute took over a decade to resolve and is reported to have be en the first time Native
Americans successfully sued the U.S. government for intentional wrongdoing. Yet in its bitter-fought
victory, there were many reversals and losses. The original District Judge, William Ritter, was deemed
too sympathetic to the Indian cause and formally ousted over his own objections. The opinion you
read describes Ritter, in a manner that is internally contradictory, or at a minimum, ambivalent.
On the one hand, Ritter was “incensed and embittered,” but on the othe r hand the treatment of
Native Americans was, in the court’s own words, replete with “brutal handling and slaughter of their
livestock.” The court takes Ritter to task for the use of emotional language (“‘horrible’, ‘monstrous’,
‘atrocious’, ‘cruel’, ‘coldblooded depredation’, and ‘without a sense of decency”’) and suggests that he

6. The allowance of $395 per head for the Indian horses and burros, and $3,500 for mental pain and suffering for their loss,
is of itself an indication of the desire of the presiding Judge to assist the plaintiffs for the different wrongs which they
had suffered.
Trespass to Chattels and Conversion | 177

may be incapable of being “impartial” because of his belief that “Indians were being wrongfully driven
from their ancestral homes.”
Considered through a contemporary lens, the opposite appe ars true. Indeed, Ritter fought to try to
remain on the case:
The Tenth Circuit also suggested that the case be assigne d to a new judge be cause the original
judge was biased in favor of the Navajos. Judge Ritter ignored this suggestion. His answer to
the government’s application for a special master to determine damages was that he did not
intend to follow the Tenth Circuit’s suggestion that he step down, “so you can lay that to one
side.” The government then applied to the Tenth Circuit for the entry of a judgment on the
mandate prohibiting Ritter from retrying the case a third time. The Tenth Circuit ordered
that Ritter “take no further action” in the case. Because at that time the U.S. District Court
for the District of Utah had only a single sitting judge (Ritter), the Chief Judge for the Tenth
Circuit, Alfred P. Murrah, assigned the case to Judge Ewing T. Kerr, U.S. District Judge for the
District of Wyoming. A little over a year later, the case se ttled. The Navajo plaintiffs received
$45,000 before de duction of attorneys fees, less than half the amount awarded them at the
first trial ($100,000) and less than a quarter of what they had been awarded at the se cond trial
($186,017.50). Debora L. Threedy, United States v. Hatahley: A Legal Archaeology Case Study in
Law and Racial Conflict, 34 Am. Indian. L. Rev. 1, 7-8 (2009) (internal citations omitted).
The opinion is cle ar in its unstinting critique of Ritter. It is thus striking to see the opinion wrestling
with the issue of the court’s positionality itself. In the final paragraph of the opinion, the court writes
somewhat harshly that “[r]acial differences merit no concern”. The phrase se ems intended to evoke
neutrality by flattening racial differences. Yet its characterization of support for the Native American
position is hardly neutral; the court minimizes critique of mass territorial dispossession as “[f]eelings
of charity or ideological sympathy for the Indians.” In so doing, it frame s the issue in a way that effaces
the United States’ role in disrupting the sociopolitical status of Native Americans.
What exactly is the nature of the court’s arguments, as it refers to “the deep concern” that “should”
exist in other branches of the government but that “does not justify” its own particular action? What
is intended by the phrase “[t]he Indian problem is essentially a sociological problem, not a legal one”?
Note that the premise that there is an “Indian problem” disclaims judicial responsibility for creating
or maintaining the “problem,” and it reinforces the existing legal hierarchy. Describing it in this way
situates the problem as somehow belonging to the population the U.S. government seeks to control;
it becomes a problem “about” the Native Americans instead of being acknowledged as a problem
produced by violence and dominion and the mobilization of vastly disparate power and resources to
entrench the status quo.
Does the court have authority, descriptively, to do more than it seems to acknowledge? Normatively,
should it? What questions would you need answered to think further about these issues? Is there a
point to rhetoric that acknowledges judicial powerlessness, in cases where judges truly believe the y
cannot act as they may wish they could?

178 | Trespass to Chattels and Conversion

13. Defenses Against the Intentional Torts
The most common defenses against the intentional torts are consent and self-defense. Additional
defenses on behalf of others and defense of property are also some times available, as are the de fenses
of public and private ne cessity. Consent is a defense for the defendant to plead but it may also be
an element for the plaintiff to overcome in ple ading if the facts tend to suggest that a plaintiff gave
consent to physical contact (which would defeat battery) or to entry onto land (which would defeat
trespass). If a person consents to something and the contact or entry on land exceeds the scope of
the consent, liability may arise. Often the difficult questions concern the scope of consent given and
whether it was given at all. Assuming consent was manifested, its validity will be the final issue to
consider. Any consent given through fraud, mistake, duress or incapacity will cause the consent to be
invalid.

Consent
O’Brien v. Cunard S.S. Co., Ltd, Supreme Judicial Court of Massachusetts
(1891)
(154 Mass. 272)
This case presents two questions: First, whether there was any evidence to warrant the jury in finding
1

that the defendant, by any of its servants or agents, committed an assault [a battery] on the plaintiff;
secondly, whether there was evidence on which the jury could have found that the defendant was
guilty of negligence towards the plaintiff. To sustain the first count, which was for an alleged assault,
the plaintiff relied on the fact that the surgeon who was employed by the defendant vaccinated her on
ship-board, while she was on her passage from Queenstown to Boston.
On this branch of the case the que stion is whe ther there was any evidence that the surgeon used
force upon the plaintiff against her will. In determining whether the act was lawful or unlawful, the
surgeon’s conduct must be considered in connection with the surrounding circumstances. If the
plaintiff’s behavior was such as to indicate consent on her part, he was justified in his act, whatever
her unexpressed feelings may have be en. In determining whether she consented, he could be guide d
only by her overt acts and the manifestations of her feelings. Ford v. Ford, 143 Mass. 578; McCarthy v.
Railroad Corp., 148 Mass. 550, 552.

1. Editor’s note: Confusingly, the court here makes an older use of the term “assault” to describe the action of battery as
we now understand it. The strike-through and the addition of “a battery” are edits to clarify the case; continue to
substitute “battery” where the case refers to “assault.”
Defenses Against the Intentional Torts | 179

It is undisputed that at Boston there are strict quarantine regulations in regard to the e xamination
of emigrants, to see that they are protected from small-pox by vaccination, and that only those *274
persons who hold a certificate from the me dical officer of the ste am-ship, stating that they are so
protected, are permitted to land without detention in quarantine, or vaccination by the port physician.
It appears that the defendant is accustomed to have its surgeons vaccinate all emigrants who desire
it, and who are not protected by previous vaccination, and give them a certificate which is accepted
at quarantine as e vidence of their protection. Notices of the regulations at quarantine, and of the
willingness of the ship’s medical officer to vaccinate such as ne eded vaccination, were poste d about
the ship in various languages, and on the day when the operation was performed the surgeon had a
right to presume that she and the othe r women who were vaccinated understood the importance and
purpose of vaccination for those who bore no marks to show that they were protected.
By the plaintiff’s testimony, which, in this particular, is undisputed, it appears that about 200 women
passengers were assembled below, and she understood from conversation with them that they were
to be vaccinated; that she stood about 15 feet from the surgeon, and saw them form in a line, and
pass in turn before him; that he “examined their arms, and, passing some of them by, proceeded to
vaccinate those that had no mark;” that she did not he ar him say anything to any of them; that upon
being passed by they each received a card, and went on deck; that when her turn came she showed
him her arm; he looked at it, and said there was no mark, and that she should be vaccinated; that
she told him she had be en vaccinated before, and it left no mark; “that he then said nothing; that he
should vaccinate her again;” that she held up her arm to be vaccinated; that no one touche d her; that
she did not te ll him she did not want to be vaccinated; and that she took the ticket which he gave
her, certifying that he had vaccinated her, and used it at quarantine. She was one of a large number
of women who were vaccinated on that occasion, without, so far as appears, a word of objection from
any of them. They all indicated by their conduct that they desired to avail themselves of the provisions
made for their benefit. There was nothing in the conduct of the plaintiff to indicate to the surgeon
that she did not wish to obtain a card which would save her from detention at quarantine, and to be
vaccinated, if necessary, for that *275 purpose. Viewing his conduct in the light of the surrounding
circumstances, it was lawful; and there was no evidence tending to show that it was not. The ruling of
the court on this part of the case was correct.
The plaintiff contends that, if it was lawful for the surgeon to vaccinate her, the vaccination was
negligently performed. “There was no evidence of want of care or precaution by the defendant in the
selection of the surgeon, or in the procuring of the virus or vaccine matter.” Unless there was evidence
that the surgeon was negligent in performing the operation, and unless the defendant is liable for this
negligence, the plaintiff must fail on the second count.
Whether there was any evidence of negligence of the surgeon we ne ed not inquire, for we are of
opinion that the defendant is not liable for his want of care in performing surgical operations. The
only ground on which it is argued that the defendant is liable for his negligence is that he is a servant
engaged in the defendant’s business, and subject to its control. We think this argument is founded
on a mistaken construction of the duty imposed on the defendant by law. By the fifth section of the
act of congress of August 2, 1882, (22 U.S.St. at Large, 188,) it is provided that “every steam-ship or
other vessel carrying or bringing emigrant passengers, or passengers other than cabin passengers,
180 | Defenses Against the Intentional Torts

exceeding fifty in number, shall carry a duly competent and qualified surgeon or medical practitioner,
who shall be rated as such in the ship’s articles, and who shall be provided with surgical instruments,
medical comforts, and medicines proper and necessary for diseases and accidents incident to sea
voyages, and for the proper medical treatment of such passengers during the voyage, and with such
articles of food and nourishment as may be proper and necessary for preserving the he alth of infants
and young children; and the services of such surgeon or medical practitioner shall be promptly given
in any case of sickness or disease to any of the passengers or to any infant or young child of any such
passengers, who may need his services. For a violation of either of the provisions of this section the
master of the vessel shall be liable to a penalty not exceeding two hundred and fifty dollars.”
Under this statute it is the duty of the ship-owners to provide a competent surgeon, whom the
passengers may employ, if they *276 choose, in the business of healing their wounds, and curing their
diseases. The law does not put the business of treating sick passengers into the charge of common
carriers, and make them responsible for the proper management of it. The work which the physician
or surgeon does in such cases is under the control of the passengers themselves. It is their business,
not the business of the carrier. They may employ the ship’s surgeon, or some other physician or
surgeon who happens to be on board, or they may treat themselves if they are sick, or may go without
treatment if they prefer; and, if they employ the surgeon, they may determine how far they will
submit themselves to his directions, and what of his medicines they will take and what reject, and
whether they will submit to a surgical operation or take the risk of going without it. The master
or owners of the ship cannot interfere in the treatment of the me dical officer when he attends a
passenger. He is not their servant, engaged in their business, and subject to their control as to his
mode of treatment. They do their whole duty if they employ a duly qualified and competent surgeon
and medical practitioner, and supply him with all necessary and proper instruments, medicines, and
medical comforts, and have him in readiness for such passengers as choose to employ him.
This is the whole requirement of the statute of the United States applicable to such cases; and
if, by the nature of their undertaking to transport passengers by sea, they are under a liability at
the common law to make provision for their passengers in this respect, that liability is no greater.
It is quite reasonable that the owners of a steam-ship used in the transportation of passengers
should be required by law to provide a competent person to whom sick passengers can apply for
medical treatment, and when they have supplie d such a person it would be unreasonable to hold
them responsible for all the particulars of his treatment when he is engaged in the business of other
persons, in regard to which they are powerless to interfere. The reasons on which it is held in the
courts of the United States and of Massachusetts that the owners are liable for the negligence of a
pilot in navigating the ship, e ven though he is appointed by public agencies, and the master has no
voice in the se le ction of him, do not apply to this case. The China, 7 Wall. 53-67; Yates v. Brown, 8 Pick.
23. The pilot is engaged *277 in the navigation of the ship, for which, on grounds of public policy, the
owners should be held responsible. The business is theirs, and they have certain rights of control in
regard to it. They may determine when and how it shall be undertaken, and the master may displace
the pilot for certain causes. But in England it has been held that even in such case the owners are not
liable. [cc] The vie w which we have taken of this branch of the case is fully sustained by a unanimous
judgment of the court of appeals of New York in Laubheim v. De Koninglyke N.S. Co., 107 N.Y. 228, 13

Defenses Against the Intentional Torts | 181

N.E.Rep. 781. [cc] We are of opinion that on both parts of the case the rulings at the trial were correct.
The evidence excepted to was rightly admitted. Exceptions overruled.
Note 1. Manifestations of consent can be verbal, in writing, or made orally. But as this case shows, they
may also be made through physical actions. Can you think of instances—like the facts reported in this
case—in which one’s actions and words may be at odds?
Note 2. Considering the range of choices Ms. O’Brien faced—re main on the ship and sail home or
disembark only after being vaccinated—does her consent seem freely given or under pressures that
tort law should acknowledge? Why did O’Brien initially attempt to refuse vaccination? Why do you
think she sued? Was her societal status relevant in her experience on the ship?
Multiple scholars who have delved into the trial record have offered a more thorough account of Ms.
O’Brien’s actions. Read the two accounts below. They are some what similar even if they have some
differences. If these accounts are accurate, does your view of the ruling change?
“From the trial record we le arn that Mary O’Brien was a seventeen year-old Irish emigrant
traveling with her father and younger brother to Boston in steerage, the cheapest possible
accommodations on a passenger ship. Ms. O’Brien was poor, unsophisticated, and not very
educated (she did not unde rstand the me aning of the terms “quarantine” and “vaccinate”
when she read them on the signs posted around the ship). The ste erage ste ward told the 200
Irish women steerage passengers who were on de ck that they had to go below into steerage,
without telling them why. (At another point, the male Irish steerage passengers were told to
go down into steerage and were “hose d down before the y knew what was to be done.”) There
was only one way out of the ste erage area, a door at the top of a staircase. At the middle of the
staircase was a landing occupied by the doctor and two steerage ste wards. There was no other
exit. The women were line d up in such a way that they could not leave until they had been
examined. One of the ste erage ste wards stood in front of the door le ading to the de ck so that
no one could leave without the surgeon’s order. Mary O’Brien, separated from her father for
the first time, nervously avoided getting in line until all the other women had been examined
by the doctor and passed through the door le ading to the de ck. She was left standing alone …in
a dim narrow passageway, surrounded by three insistent men clothed in authority. She told
the doctor that she had be en vaccinated before. He retorted that she “must” be vaccinated.
(Although the court’s opinion states that the doctor said that she “should” be vaccinated, Ms.
O’Brien testified that he said she “must” be vaccinated.)”
Jody Armour, Just Deserts: Narrative, Perspective, Choice, and Blame, 57 U. Pitt. L. Rev. 525, 532–33
(1996).
“The ste erage ste ward told the 200 women steerage passengers who were on de ck that they
had to go below into steerage, without telling them the reason. From the ste erage area, there
was only one door, which was at the top of a staircase. At the middle of the staircase was
a landing where the doctor and two steerage ste wards positioned themselves. There was no
other way to leave ste erage. The 200 women were line d up and told that they would not be
allowed to leave until they had been examined. One of the ste erage ste wards stood at the door
182 | Defenses Against the Intentional Torts

leading to the de ck and let no one le ave without the doctor’s order. … The women were line d
up, and one by one, passed by the doctor. They were not asked if they wished to be e xamined.
They were not told the purpose of the e xamination. Dr. Giffen examined each woman’s arm to
see if there was a vaccination mark. Those with a mark were allowed to pass. Those without
were vaccinated. As they left, the doctor instructed the ste ward to give e ach a card. Once the
threatening and coercive nature of the situation is acknowledged, the doctor’s actions can be
understood as part of the e xercise of superior force to compel acquiescence. … She did not get
in line, but stood to the side. When she was the only one left, except the two stewards, she
went up to the doctor -and told him that she had be en vaccinated before. He did not inquire
about the previous vaccination. How did she know she had received one? What did she know
about it? On what part of her body was it administered? He did not e xamine her to see if there
was a mark anyplace else on her body. He did not e xplain her choices if she had no mark. He
did not discuss how a prior vaccination that left no mark would be treated by the public he alth
authorities in Boston. He simply told her she had to be vaccinated.”
Ann C. Shalleck, Feminist Legal Theory and the Reading of O’Brien v. Cunard, 57 Mo. L. Rev. 371-372, 383
(1992). Shalleck concludes from this additional set of facts that “[i]t was reasonable for her to voice
no further objection. It was not reasonable for the doctor to conclude that she had given freely her
consent.”
We might wonder why the court would withhold such facts given that they were present in the record;
we might reasonably wonder why the case continues to be used as an example of manifesting consent,
based on a set of facts that offer a distorted, inaccurate reality.
In Shalleck’s view, the silencing of Ms. O’Brien is consistent with social patterns: “Women’s
experiences of vulnerability and danger have be en an important part of their subordination. The law
has been slow to acknowledge the circumstances that create threats to women.” Id.
O’Brien v. Cunard offers an object lesson in law’s power to set certain narratives that become all but
impossible to disrupt and reframe. On facts similar to those the court depicts, the rule of the case
would still be “good law” and can be cited as such. This is true e ven though the coercive nature of the
vaccination can be discerned in the court’s telling: as an immigrant seeking entry, O’Brien would need
to comply with the regulations in place in the United States. She didn’t have all that much freedom
to choose otherwise unle ss she wanted to choose to return to Ireland. Perhaps our recent pandemic
makes it clear that there may be times when the governmental mandate to act overcomes individual
autonomy to a certain extent in certain contexts. In light of the more accurate facts offered in the
accounts above, however, the case reminds us of the power courts possess to fix one version of a story
and fit it to the legal rules their opinions clarify and justify. That judicial authority can disempower
and silence, or it can empower and bear witness. As readers of these cases, we ne ed to learn to read
them on many levels.
Note 3. Revisit the purposes of tort law. Is vaccination a special kind of activity that requires different
rules or protections, either to fulfill tort law’s purposes or for social, epidemiological or political
reasons?

Defenses Against the Intentional Torts | 183

Note 4. Distinguish implied license from consent: recall the kicking classmate hypothetical, above,
which was drawn from Vosburg v. Putney. Vosburg (not assigned) provided dicta emphasizing that the
2

conduct was wrongful in part because of the context in which the kick occurred: in class, not recess.
“Had the parties been upon the play–grounds of the school, engaged in the usual boyish
sports, the defendant being free from malice, wantonness, or negligence, and intending no
harm to plaintiff in what he did, we should hesitate to hold the act of the defendant unlawful,
or that he could be he ld liable in this action. Some consideration is due to the implie d license
of the play–grounds. But it appears that the injury was inflicted in the school, after it had been
called to order by the te acher, and after the regular exercises of the school had commenced.
Under these circumstances, no implied lice nse to do the act complained of existed, and such
act was a violation of the order and decorum of the school, and necessarily unlawful.”
Had this same

kick taken place

instance, the outcome

out on the

might have

playground, in the

rough-and-tumble

of recess, for

be en different. Participation in playground games and other

activities in which contact with others is likely may give rise to an implie d license. If someone throws
a ball at you after you’ve said, “I don’t want to play,” you clearly haven’t agreed to participate, and
throwing the ball at you might constitute a battery by the thrower. But if you agree to a game and
begin to play it, you’ve agreed to at least some contact, within the e xpected bounds of the game. How
should tort law define the oute r limits of that contact? When are those limits exceeded? Anger or
insolence made along with the contact? Cheating at the game ? Are certain kinds of cheating worse
than others, from the perspective of tort law’s aims? Does it matter if the context is amateur versus
professional?
Note 5. Restatement (Second) of Torts § 892 A. Effect of Consent; Comment
(1) One who effectively consents to conduct of another intended to invade his interests cannot recover
in an action of tort for the conduct or for harm resulting from it.
(2) To be effective, consent must be
(a) by one who has the capacity to consent or by a person empowered to consent for him, and
(b) to the particular conduct, or to substantially the same conduct.
(3) Conditional consent or consent restricted as to time, area or in other respects is effective only
within the limits of the condition or restriction.
(4) If the actor exceeds the consent, it is not effective for the excess.
(5) Upon termination of consent its effectiveness is terminated, except as it may have

be come

irrevocable by contract or otherwise, or except as its terms may include, expressly or by implication,
a privilege to continue to act.
(1) Consent is willingness in fact for conduct to occur. It may be manifested by action or
inaction and need not be communicated to the actor.

2. Vosburg v. Putney, 50 N.W. 403, Supreme Court of Wisconsin (1891).
184 | Defenses Against the Intentional Torts

(2) if words or conduct are reasonably understood by another to be intended as consent, they
constitute apparent consent and are as effective as consent in fact.
Even when the person concerned does not in fact agree to the conduct of the other, his words
or acts or even his inaction may manifest a consent that will justify the other in acting in reliance
upon them. This is true when the words or acts or silence and inaction, would be understood by a
reasonable person as intended to indicate consent and they are in fact so understood by the other.
This conduct is not merely evidence that consent in fact exists, to be weighed against a denial.
It is a manifestation of apparent consent, which justifies the other in acting on the assumption
that consent is given and is as effective to prevent liability in tort as if there were consent in fact.
On the other hand, if a reasonable person would not understand from the words or conduct that
consent is given, the other is not justified in acting upon the assumption that consent is given
even though he honestly so believes; and there is then no apparent consent.
Reading the Restatement (Second) of Torts § 892 A, above, can you identify the uses of both objective
and subjective standards?

Check Your Understanding – Set 17

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=49#h5p-44

Hypothetical: Pro-Football / Miami Dolphins v. Denver Broncos The incident which gave rise to this
lawsuit occurred near the end of the first half of the football game between the Miami Dolphins and
the Denver Broncos at a time when the Denver team was leading by a score of 21 to 3. John Haden
was playing a free safety position on the Broncos’ defensive team and Dan Park was playing fullback
on the Dolphins’ offensive team. The Miami team attempted a forward pass play during which Dan
Park ran into a corner of the north end zone as a prospective receiver. That took him into an area
which was the defensive responsibility of Mr. Haden. The thrown pass was intercepted near the goal
line by a Denver linebacker who then began to run the ball upfield. The interception reversed the
offensive and defensive roles of the two teams. As a result of an attempt to block Dan Park in the end
zone, John Haden fell to the ground. He then turned and, with one knee on the ground and the other
leg extended, watched the play continue upfield. Acting out of anger and frustration, but without a
specific intent to injure, Dan Park stepped forward and struck a blow with his right forearm to the

Defenses Against the Intentional Torts | 185

back of the kneeling plaintiff’s head with sufficient force to cause both players to fall forward to the
ground. Both players arose and, without comment, went to their respective teams along the sidelines.
They both returned to play during the second half of the game. Because no official observed it, no
foul was called on the disputed play and John Haden made no report of this incident to his coaches
or to anyone else during the game. Mr. Haden experienced pain and soreness to the extent that he
was unable to play golf as he had planned on the day after the game, he did not seek any medical
attention and, although he continued to feel pain, he played on specialty team assignments for the
Denver Broncos in games against the Chicago Bears and the San Francisco Forty-Niners on
successive Sundays. The Denver Broncos then released Mr. Haden on waivers and he was not claimed
by any other team. After losing his employment, Mr. Haden sought medical assistance, at which time
it was discovered that he had a neck injury.
Has Park committed any torts for which Mr. Haden can recover? Why or why not?

Self-Defense
Different jurisdictions have de veloped diverse boundaries for the privileges associated with defending
oneself against the threat of bodily injury, but all have some version of a defense that allows the
defendant to use force for their own protection. Some may permit the use of deadly force, some
permit only “proportional” or “reasonable” efforts, and others have rules that vary depending on
whether one can retreat to one’s car or home, for instance. This is an area of tort law which intersects
with criminal law; a self-defense claim may be brought either in response to a civil claim or in
response to criminal prosecution or both.
Almost all jurisdictions have some me ans of distinguishing a responsive and ne cessary use of force
from an antagonizing or escalating response. If the original aggressor has retreated, for instance, the
person who wishes to benefit from self-defense cannot attack the person by stabbing them in the
back or throwing a weapon in their direction; their perceived need for protection has been eliminated
with the aggressor’s retreat. Similarly, plotting an elaborate later response in consequence of ongoing
bullying does not count as self-defense; the law expects a victim of regular bullying to use other
means of protection such as reporting to relevant authorities. Self-defense is thus a highly structured
defense limited to imminent and reasonably perceived threats and actions that would cause the
claimant physical harm. Once the e xistence of those can be proven, the person seeking to exercise the
defense will be protected within the bounds of the rules in their jurisdiction.

186 | Defenses Against the Intentional Torts

McMurrey Corp. v. Yawn, Court of Civil Appeals of Texas, Texarkana
(1940)
(143 S.W.2d 664)
Addie Yawn, surviving wife, and the minor children of Girardus H. Yawn, appellees, instituted this suit
against the McMurrey Corporation, the McMurrey Petroleum Corporation, the McMurrey Interests,
the

McMurrey Pipe

Line

Company, the

McMurrey Refining Company, Marvin H. McMurrey, Jim

McMurrey, and Lucille McMurrey, for damages occasioned by the alleged wrongful death of Girardus
H. Yawn, hereinafter referred to as deceased. It was alleged that the McMurreys were partners, joint
adventurers, or joint associates in the ownership and operation of certain oil properties located in
Rusk County, among which was the oil le ase known as the Pinkston le ase, and that one Rudolph
Loesewitz was employed by them to guard, supervise and manage said le ase; that said Loesewitz
as their agent and while acting within the scope or apparent scope of his authority as watchman,
manager and operator of said lease, and not in his own self-defense, negligently and carelessly shot
and killed deceased. In the alternative it was alleged that the killing of deceased was intentionally
brought about by the conspiracy of the McMurreys acting by and through their agent, Loesewitz.
All the McMurreys including the se veral companies answered denying partnership, and all except
Jim McMurrey denied that Loesewitz was their employee or agent in any capacity. Jim McMurrey
answered that after he purchased the Pinkston le ase he e mployed Loesewitz to look after said lease
“generally” and to flow the oil wells located thereon; that at the time Loesewitz killed deceased, he,
Loesewitz, “was outside of his employment or the scope of his employment by this defendant; that
said Rudolph Loesewitz, at the time of such killing, and immediately prior thereto, was acting in his
own self-defense, for all of which this defendant is in no way liable for damages or any part of the
damages sued for herein.”
The record reflects that deceased operated and managed the Pinkston le ase before it was purchased
by Jim McMurrey. Shortly after its purchase he was discharged, and Loesewitz was employed in his
stead. While de ceased was working on the Pinkston le ase he lived in a house located thereon. This
house was purchased either by Jim McMurrey or some one for him, and was being moved on the day
deceased was killed. Deceased had removed from the le ase before his de ath. Loesewitz also lived in
a house located on the le ase about 200 or 300 feet from the house formerly occupied by deceased.
After deceased had been discharged by appellant and before his de ath, some of the oil wells located
on this lease had on two occasions been turned on at night, causing the tanks to overflow. Loesewitz
thought that deceased was the party who turned on the wells and he so informed Jim McMurrey. On
the day of the killing Loesewitz was informed that deceased was on the le ase ne ar the house whe re he
had formerly lived. On receiving this information Loesewitz took his shotgun, went to where de ceased
was, and after speaking a few words to him shot and killed him. Loesewitz testified that threats by
deceased to take his life had be en, on two occasions, communicated to him; one on the night before,
and the other a few minutes before the killing. Loesewitz also testified that, at the time of the killing,
deceased by acts committed evidenced an intention to carry said threats into execution and that he
shot him in self-defense. It later developed, however, that deceased was unarmed. The jury verdict
upon special issues and the judgment rendered thereon were for appellees and against defendants Jim
Defenses Against the Intentional Torts | 187

McMurrey, M. H. McMurrey, and the McMurrey Corporation, jointly and severally, who prosecute this
appeal. The other defendants were dismissed from the case.
This action was brought under Article 4671, Sec. 1, R.C.S., by the dependents of deceased for damages
for his alleged wrongful killing by Loesewitz. The e vidence is undispute d that the killing of deceased
was intentional and not the result of negligence. Self-defense was relied on as a justification for said
killing. The court below charged the jury as follows:
“You are charged that by the term ‘wrongful’ as used in Special Issue No. 1, means the use of
a greater degree of force than was reasonable and ne cessary under the circumstances then
existing.
“Now bearing in mind the foregoing definitions and instructions, you will answer *666 the
following special issues, to-wit: Special Issue No. 1:
“Do you find from a preponderance of the e vidence that the action of Rudolph Loesewitz in
shooting and killing the deceased, Girardus H. Yawn, was wrongful? Answer Yes or No.”
Jury answer: “Yes.”
By proposition No. 9 appellants challenge the correctness of this definition when applied to the facts
and circumstances surrounding the defense of self-defense as shown by the testimony in the record.
Appellants’ proposition is: “In a civil suit to recover damages for the alleged wrongful death of the
deceased, where the de fendant’s pleadings and evidence raise the issue that the de ceased had made
threats against the life of the defendant, which were communicated to the defendant, and that, by the
demonstration made by the de ceased, the defendant believed the de ceased intended to carry out such
threat, and, in defense of himself, he killed the de ceased, it is error for the court to submit to the jury
the bald question whether the action of the defendant in killing the de ceased was wrongful, without
instructing the jury upon the law of threats and self-defense and justifiable homicide. An instruction
that the term ‘wrongful’, as used in the question, means the use of a greater degree of force than is
reasonable and ne cessary under the circumstances then existing, is entirely inadequate, misleading,
and gives to the jury the impression that the killing of the de ceased was the e xercise of a greater
degree of force than was necessary, and was, therefore, wrongful.”
If Loesewitz was acting in his own self-defense at the time he shot and kille d deceased, the killing in
law would not be wrongful but justifiable. This is true in a civil action as well as in a criminal action.
It was said in the e arly case of March v. Walker, 48 Tex. 372: “The law of self-defe nse is the same as
in a criminal prosecution, with the e xception of the rule of evidence which, in a criminal cause, gives
the defendant the benefit of a reasonable doubt. That doubt, however, is as to the facts,—not as to the
extent of the right. The stage of the difficulty at which self-defense ceases is just the same, whether
the question be investigated civilly or criminally.”
[***] Loesewitz testified that he thought deceased on two occasions at night had turned on the oil
wells located on said lease, causing the oil tanks to overflow; that he had de ceased make tracks for
comparison with “boot tracks” found near the oil wells; that he reported to the sheriff’s office of
188 | Defenses Against the Intentional Torts

Rusk County and to the officers of the Railroad Commission that said oil wells had been turned on.
Loesewitz testified further that he went to see the district attorney of Rusk County for the purpose
of having deceased placed under a peace bond to avoid having trouble with him. On the night before
deceased was killed Loesewitz testified that his (Loesewitz’s) wife told him that deceased “was coming
on the le ase and get me”; that about fifteen minutes before the killing “T.M. Hill came up and told me
that Buck Yawn (deceased) was down on the le ase and had a gun and was going to—he said, ‘going to
kill you the first time he saw you.’”
Loesewitz testified further:
“Q. When Hill told you that, what did you do?
A. I got me a gun and went down there to get him to carry him to town.
“Q. Well, how near did you get to him before you saw him?
A. I judge between 20 and 30 steps.
“Q. Did you say steps?
A. I said steps but I mean feet, between 20 and 30 feet.
“Q. What did you say to him, if anything?
A. I said, ‘All right, Buck come and go with me, you are going to town.’
“Q. What did he do, if anything?
A. He made about two steps and went left hand to his waist–
“Q. What did you say or do, if anything?
A. I did not say anything or do anything, I just raised my gun and shot.
“Q. Then what did you do?
A. I turned around and went to the Lispe n Gasoline plant and called the sheriff’s department and told
them to call Jim McMurrey, told them about what had happened.
*667 “Q. Who was the first person you saw after you had shot Buck Yawn?
A. My wife—I believe it was my wife.
“Q. Do you know Mr. Larner?
A. Yes, I know him.
“Q. Did you see him first or your wife?
A. I can not say for sure whether it was him or my wife.
“Q. What statement, if any, did you make to Mr. Larner about Buck?
A. The same statement I made to e veryone, the only statement I made was to go and watch him and
don’t let them take that gun off of him.
“Q. How long was that after you had fired the shot that had killed Buck Yawn?
A. About as long as it would take you to walk around—say 100 feet.

Defenses Against the Intentional Torts | 189

“Q. What was Buck Yawn doing, just prior to the time that you fired the shot that killed him?
A. He was walking toward me.
“Q. Was he doing anything else?
A. Well, when I first seen him he had his back towards me and was walking off.
“Q. When he started towards you what movement did he make with his hands?
A. He went left-handed for his shirt, like he was going in his shirt after something.
“Q. What did you think he was going to do?
A. I thought my time had come; I thought he would probably kill me.
“Q. What did you think he was going to kill you with?
A. I thought he had a gun in his belt.
“Q. Did you know the reputation that Buck Yawn bore in that neighborhood, and in that vicinity, for
being a law-abiding man?
A. I had heard about him toting a pistol and shooting out lights out of those honkey-tonks up and
down the highway.
“Q. When you put the Ford pick-up in the Rushing garage and walked home, who was it that you were
afraid of that night, who was it you were afraid would come, or might?
A. Well my wife told me it was Buck Yawn.
“Q. From what your wife had told you about what was going on up at the store, they were going to get
you that night, you left it there be cause you were afraid that Buck Yawn and whoever might be with
him would come?
A. Yes.
“Q. That was Friday night before the killing on Saturday?
A. Yes, sir. ”
This testimony, in our opinion, clearly raise s the issue of communicated threats and self-defense, and
the court’s definition of the term “wrongful” as applied to the facts in this case is incorrect. If at the
time of the killing the de ceased by his acts and conduct reasonably induced Loesewitz to believe that
deceased was about to attack him with a deadly weapon which would probably cause Loesewitz’ death
or some serious bodily injury; or if by the acts of the de ceased it reasonably appeared to Loesewitz at
the time, viewed from his standpoint alone, that deceased was then about to attack him with a deadly
weapon which would probably cause Loesewitz’ death or some serious bodily injury, and if same was
reasonably calculated to create in the mind of Loesewitz, and did create in his mind, a reasonable
expectation of fear of death or some serious bodily injury, and that Loesewitz then and there moved
and actuated by such reasonable e xpectation of fear of death or serious bodily injury, shot and killed
deceased, then under such circumstances the killing would be in his lawful self-defense and would
not be “wrongful.”
Where a person accused of murder seeks to justify himself on the ground of threats against his
own life, he may be permitted to introduce e vidence of the threats made , but the same shall not
190 | Defenses Against the Intentional Torts

be regarded as affording a justification for the offense, unless it be shown that at the time of the
homicide the pe rson kille d by some act then done manifested an intention to execute the threats
so made. If deceased did make threats against the life of Loesewitz and at the time of the killing
deceased made such an act or demonstration as reasonably to produce in the mind of Loesewitz,
viewed from his standpoint at the time, a belief that deceased then and there intended to execute
such threats and to take the life of Loesewitz, or to do him some serious bodily harm, then the killing
would not be “wrongful.” It is not essential to the right of self-defense that real danger should exist. If
from Loesewitz’ standpoint, taking into consideration all the facts and circumstances surrounding the
parties, it reasonably appeared to him that he was in danger of death or serious bodily injury, under
the law he had the right to defend against such apparent dange r to the same e xtent as if the danger
were real, and if he shot and kille d the de ceased under such circumstances the killing would not be
“wrongful.” *668 [c]. This omission from the definition of the term “wrongful” in the court’s charge
preceding Special Issue No. 1 is vital, and calls for a reversal of this case. [cc] The converse of the
above is also true; that is to say, if Loesewitz used a greater degree of force than was reasonable and
necessary under the circumstances existing at the time of the killing and was not acting in his own
necessary self-defense as explained above, the killing would be “wrongful.”
[***] The judgment is reversed, and the cause remanded.
Note 1. In what way is the jury instruction the lower court gives in McMurrey Corp. v. Yawn erroneous?
Do you think that the omission of a single word is likely to make a difference in a jury verdict
concerning the lawfulness of a killing? Why or why not?
Note 2. How does the court define wrongfulness? Is it through use of a rule or standard? Whose
perspective of the circumstances does the court adopt, or through what standard does the court
consider self-defense?
Note 3. Defense of Others. A similar privilege to defend others from harmful or offensive contact
exists so long as the intervention is necessary for the protection of the third person. Usually the
circumstance s must be the same as those ne cessary to justify self-defense; the idea is that the
defender steps into the shoes of the person they are defending and thus the same inquiries will be
asked, only they will apply to the defender, not the victim. The proportionality principle is usually the
same (although in some jurisdictions the scope of the privilege to defend others is narrower than the
scope of self-defense).

Defense of Property
Restatement (Second) of Torts § 77 Defense of Possession by Force Not Threatening Death or
Serious Bodily Harm
An actor is privileged to use reasonable force, not intended or likely to cause de ath or serious bodily
harm, to prevent or terminate another’s intrusion upon the actor’s land or chattels, if

Defenses Against the Intentional Torts | 191

(a) the intrusion is not privileged or the other intentionally or negligently causes the actor to
believe that it is not privileged, and
(b) the actor reasonably believes that the intrusion can be prevented or terminated only by the
force used, and
(c) the actor has first requested the other to desist and the other has disregarded the request,
or the actor reasonably believes that a request will be useless or that substantial harm will be
done before it can be made.

Katko v. Briney, Supreme Court of Iowa (1971)
(183 N.W.2d 657)
The

primary issue

presented here

unoccupied boarded-up farmhouse

is whe ther an owner may protect personal property in an
against trespassers and thieve
s by a spring gun capable

of

inflicting death or serious injury.
We are not here concerned with a man’s right to protect his home and members of his family.
Defendants’ home was several miles from the scene of the incident to which we refer infra. *658
Plaintiff’s action is for damages resulting from serious injury caused by a shot from a 20-gauge spring
shotgun set by defendants in a bedroom of an old farmhouse which had be en uninhabited for several
years. Plaintiff and his companion, Marvin McDonough, had broken and entered the house to find and
steal old bottles and dated fruit jars which they considered antiques.
At defendants’ request plaintiff’s action was tried to a jury consisting of residents of the community
where defendants’ property was located. The

jury returned a verdict for plaintiff and against

defendants for $20,000 actual and $10,000 punitive

damages. After careful consideration of

defendants’ motions for judgment notwithstanding the verdict and for new trial, the e xperienced and
capable trial judge overruled them and entered judgment on the verdict. Thus we have this appe al by
defendants. [***]
Most of the facts are not dispute d. In 1957 defendant Bertha L. Briney inherited her parents’ farm
land in Mahaska and Monroe Counties. Included was an 80-acre tract in southwest Mahaska County
where her grandparents and parents had lived. No one occupied the house the reafter. Her husband,
Edward, attempted to care for the land. He kept no farm machinery thereon. The outbuildings be came
dilapidated. For about 10 years, 1957 to 1967, there occurred a series of trespassing and housebreaking
events with loss of some household items, the breaking of windows and ‘messing up of the property
in general’. The latest occurred June 8, 1967, prior to the event on July 16, 1967 herein involved.
Defendants through the years boarded up the windows and doors in an attempt to stop the intrusions.
They had posted ‘no trespass’ signs on the land several years before 1967. The ne arest one was 35 feet
from the house . On June 11, 1967 defendants set ‘a shotgun trap’ in the north bedroom. After Mr. Briney
cleaned and oiled his 20-gauge shotgun, the power of which he was well aware, defendants took it to
the old house whe re the y secured it to an iron bed with the barrel pointed at the be droom door. It was
192 | Defenses Against the Intentional Torts

rigged with wire from the doorknob to the gun’s trigger so it would fire whe n the door was opened.
Briney first pointed the gun so an intruder would be hit in the stomach but at Mrs. Briney’s suggestion
it was lowered to hit the legs. He admitted he did so ‘be cause I was mad and tired of being tormented’
but ‘he did not intend to injure anyone’. He gave to e xplanation of why he use d a loaded shell and set
it to hit a person already in the house. Tin was nailed over the bedroom window. The spring gun could
not be seen from the outside. No warning of its presence was posted.
Plaintiff lived with his wife and worked regularly as a gasoline station attendant in Eddyville, seven
miles from the old house. He had observed it for several years while

hunting in the

area and

considered it as being abandoned. He kne w it had long been uninhabited. In 1967 the area around the
house was covered with high weeds. Prior to July 16, 1967 plaintiff and McDonough had been to the
premises and found several old bottles and fruit jars which they took and added to their collection
of antiques. On the latter date about 9:30 p.m. the y made a se cond trip to the Briney property. They
entered the old house by removing a board from a porch window which was without glass. While
McDonough was looking around the kitchen area plaintiff went to another part of the house. As he
started to open the north bedroom door the shotgun went off striking him in the right leg above the
ankle bone. Much of his leg, including part of the tibia, was blown away. Only by McDonough’s *659
assistance was plaintiff able to get out of the house and after crawling some distance was put in his
vehicle and rushed to a doctor and then to a hospital. He remained in the hospital 40 days.
Plaintiff’s doctor testified he seriously considered amputation but eventually the he aling process was
successful. Some weeks after his release from the hospital plaintiff returned to work on crutches. He
was required to keep the injured leg in a cast for approximately a year and wear a special brace for
another year. He continued to suffer pain during this period. There was undenied medical testimony
plaintiff had a permanent deformity, a loss of tissue, and a shortening of the leg.
The record discloses plaintiff to trial time had incurred $710 medical expense, $2056.85 for hospital
service, $61.80 for orthopedic service and $750 as loss of earnings. In addition thereto the trial court
submitted to the jury the question of damages for pain and suffering and for future disability.
Plaintiff testified he kne w he had no right to break and ente r the house with intent to steal bottles
and fruit jars therefrom. He further testified he had entered a plea of guilty to larceny in the nighttime
of property of less than $20 value from a private building. He stated he had be en fined $50 and costs
and paroled during good behavior from a 60-day jail sentence. Other than minor traffic charges this
was plaintiff’s first brush with the law. On this civil case appe al it is not our prerogative to review the
disposition made of the criminal charge against him.
The main thrust of defendants’ defe nse in the trial court and on this appeal is that ‘the law permits
use of a spring gun in a dwelling or warehouse for the purpose of preventing the unlawful entry of a
burglar or thief’. [***]
In the statement of issues the trial court stated plaintiff and his companion committed a felony when
they broke and entered defendants’ house.
• In instruction 2 the court referred to the early case history of the use of spring guns and stated
Defenses Against the Intentional Torts | 193

under the law their use was prohibited except to prevent the commission of felonies of violence
and where human life is in danger. The instruction included a statement breaking and entering is
not a felony of violence.
• Instruction 5 stated: ‘You are hereby instructed that one may use reasonable force in the
protection of his property, but such right is subject to the qualification that one may not use
such means of force as will take human life or inflict great bodily injury. Such is the rule even
though the injured party is a trespasser and is in violation of the law himself.’
• Instruction 6 stated: ‘An owner of premises is prohibited from willfully or intentionally injuring a
trespasser by means of force that either takes life or inflicts great bodily injury; and therefore a
person owning a premise is prohibited from setting out ‘spring guns’ and like dangerous devices
which will likely take life or inflict great bodily injury, for the purpose of harming trespassers.
The fact that the trespasser may be acting in violation of the law does not change the rule. The
only time when such conduct of setting a ‘spring gun’ or a like dangerous device is justified
would be when the trespasser was committing a felony of violence or a felony punishable by
death, or where the trespasser was endangering human life by his act.’
• Instruction 7, to which defendants made no objection or exception, stated: ‘To entitle the
plaintiff to recover for compensatory damages, the burden of proof is upon him to establish by a
preponderance of the evidence each and all of the following propositions:
‘1. That defendants erected a shotgun trap in a vacant house on land owned by defendant, *660
Bertha L. Briney, on or about June 11, 1967, which fact was known only by them, to protect
household goods from trespassers and thieves.
‘2. That the force use d by defendants was in excess of that force reasonably necessary and which
persons are entitled to use in the protection of their property.
‘3. That plaintiff was injured and damaged and the amount thereof.
‘4. That plaintiff’s injuries and damages resulted directly from the discharge of the shotgun trap
which was set and used by defendants.’
The

overwhelming weight of authority, both textbook and case

law, supports the

trial court’s

statement of the applicable principles of law. [***]
Restatement of Torts, section 85, page 180, states: ‘The value of human life and limb, not only
to the individual concerned but also to society, so outweights [sic] the interest of a possessor
of land in excluding from it those whom he is not willing to admit thereto that a possessor
of land has, as is stated in s 79, no privilege to use force intended or likely to cause de ath or
serious harm against another whom the possessor sees about to enter his premises or meddle
with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers
or users of the premises. * * * A possessor of land cannot do indirectly and by a mechanical
device that which, were he present, he could not do immediately and in person. Therefore,
he cannot gain a privilege to install, for the purpose of protecting his land from intrusions
harmless to the lives and limbs of the occupiers or users of it, a mechanical device whose only
purpose is to inflict death or serious harm upon such as may intrude, by giving notice of his
194 | Defenses Against the Intentional Torts

intention to inflict, by mechanical means and indirectly, harm which he could not, even after
request, inflict directly were he present.’
In Volume 2, Harper and James, The Law of Torts, section 27.3, pages 1440, 1441, this is found: ‘The
possessor of land may not arrange his premises intentionally so as to cause de ath or serious bodily
harm to a trespasser. The possessor may of course take some ste ps to repel a trespass. If he is present
he may use force to do so, buy only that amount which is reasonably necessary to effect the repulse.
Moreover if the trespass threatens harm to property only—even a theft of property—the possessor
would not be privileged to use de adly force, he may not arrange his premises so that such force will
be inflicted by mechanical means. If he doe s, he will be liable e ven to a thief who is injured by such
device.’
[Omitting review of additional cases holding property owners liable for harms committed to entrants
on land through use of excessive force omitted]
In Wisconsin, Oregon and England the use of spring guns and similar devices is specifically made
unlawful by statute. [c]
*662 The legal principles stated by the trial court in instructions 2, 5 and 6 are well established and
supported by the authorities cited and quoted supra. There is no merit in defendants’ objections and
exceptions thereto. Defendants’ various motions based on the same reasons stated in exceptions to
instructions were properly overruled.
Plaintiff’s claim and the jury’s allowance of punitive damages, under the trial court’s instructions
relating thereto, were not at any time or in any manner challenged by defendants in the trial court as
not allowable. We therefore are not presented with the problem of whether the $10,000 aware should
be allowed to stand. [***] Study and careful consideration of defendants’ contentions on appeal reveal
no reversible error. Affirmed.
LARSON, Justice.
I respectfully dissent, first, because the majority wrongfully assumes that by installing a spring gun in
the be droom of their unoccupied house the de fendants intended to shoot any intruder who attempted
to enter the room. Under the record presented here, that was a fact question. Unless it is held that
there property owners are liable for any injury to an intruder from such a device regardless of the
intent with which it is installed, liability under these pleadings must rest upon two definite issues of
fact, i.e., did the defendants intend to shoot the invader, and if so, did they employ unnecessary and
unreasonable force against him?
It is my feeling that the majority oversimplifies the impact of this case on the law, not only in this
but other jurisdictions, *663 and that it has not thought through all the ramifications of this holding.
There being no statutory provisions governing the right of an owner to defend his property by the use
of a spring gun or other like de vice, or of a criminal invader to recover punitive damages when injured
by such an instrumentality while breaking into the building of another, our interest and attention are
directed to what should be the court determination of public policy in these matters. On both issues
we are faced with a case of first impression. We should accept the task and clearly establish the law
Defenses Against the Intentional Torts | 195

in this jurisdiction hereafter. I would hold there is no absolute liability for injury to a criminal intruder
by setting up such a device on his property, and unless done with an intent to kill or seriously injure
the intruder, I would absolve the owner from liability other than for negligence. I would also hold
the court had no jurisdiction to allow punitive damages when the intruder was engaged in a serious
criminal offense such as breaking and entering with intent to steal.
It appears to me that the le arned trial court was and the majority is now confused as to the basis
of liability under the circumstances revealed. Certainly, the trial court’s instructions did nothing to
clarify the law in this jurisdiction for the jury. Timely objections to Instructions Nos. 2, 5 and 6 were
made by the defendants, and thereafter the court should have be en aware of the questions of liability
left unresolved, i.e., whether in this jurisdiction we by judicial declaration bar the use in an unoccupied
building of spring guns or other devices capable of inflicting serious injury or death on an intruder
regardless of the intent with which they are installe d, or whether such an intent is a vital element
which must be proven in order to establish liability for an injury inflicted upon a criminal invader.
Although the

court told the

jury the

plaintiff had the

burden to prove

‘That the

force

use d by

defendants was in excess of that force reasonably necessary and which persons are entitled to use in
the protection of their property’, it utterly failed to tell the jury it could find the installation was not
made with the intent or purpose of striking or injuring the plaintiff. There was considerable e vidence
to that effect. As I shall point out, both defendants stated the installation was made for the purpose
of scaring or frightening away any intruder, not to seriously injure him. It may be that the e vidence
would support a finding of an intent to injure the intruder, but obviously that important issue was
never adequately or clearly submitted to the jury.
Unless, then, we hold for the first time that liability for death or injury in such cases is absolute,
the matter should be remanded for a jury determination of defendant’s intent in installing the de vice
under instructions usually given to a jury on the issue of intent. In the case at bar the plaintiff was
guilty of serious criminal conduct, which event gave rise to his claim against de fendants. Even so, he
may be eligible for an award of compensatory damages which so far as the law is concerned redresses
him and places him in the position he was prior to sustaining the injury. The windfall he would receive
in the form of punitive damage s is bothe rsome to the principle of damages, because it is a response
to the conduct of the defendants rather than any reaction to the loss suffered by plaintiff or any
measurement of his worthiness for the award.
When such a windfall comes to a criminal as a result of his indulgence in serious criminal conduct,
the result is intolerable and inde ed shocks the conscience. If we find the law upholds such a result,
the criminal would be permitted by operation of law to profit from his own crime. [***] We cannot in
good conscience ignore the conduct of the plaintiff. He does not come into court with clean hands,
and attempts to make a claim to punitive damages in part on his own criminal conduct. In such
circumstances, to enrich him would be unjust, and compensatory damages in such a case itself would
be a sufficient deterrent to the defendant or others who might intend to set such a device. [***]
The admonitory function of the tort law is adequately served where the compensatory damages
claimed are high and the granted award itself may act as a severe punishment and a deterrence. In
such a case as we have here there is no ne ed to hold out the prospect of punitive damages as an
196 | Defenses Against the Intentional Torts

incentive to sue and rectify a minor physical damage such as a redress for lost dignity. Certainly this is
not a case where defendants might profit in excess of the amount of reparation they may have to pay.
In a case of this kind there is no overwhe lming social purpose to be achie ved by punishing defendants
beyond the compensatory sum claimed for damages.
Note 1. How does what you have le arned about the rules of defe nse stack up against the use of
mechanized instruments of harm such as spring guns? Does it matter if the spring guns are likely to
be le thal or merely to cause danger? Can you think of any conditions in which traps or mechanisms
that intentionally cause physical harm might be lawful under tort law’s various defense principles?
Note 2. Review the jury instructions cited in Katko. If you were a juror with only lay experience and no
legal knowledge, do you think they would be straightforward to apply? What if anything do you think
would help improve them?
Note 3. The dissent takes a strongly critical view of Katko’s status on the property: he was a trespasser
(not doing so for the first time), and a burglar. To what extent should the interaction of the criminal
and civil systems’ purposes be weighed against each other in determinations of both liability and
damages in tort law? Does the majority get this right or are you more persuaded by the dissent? Note
that this edited version mostly omits discussion of the punitive damages Katko had been granted and
which were not properly appealed, and thus were not reversed. These “extra” damages were part of
what drove the disse nting opinion. The Brineys did not have the resources to pay the court-ordered
damages and had to sell 80 of their 120 acres to pay the judgment. The de cision generated public
rebuke and various states introduced laws strengthening self-defense provisions. These so-called
“Briney Bills” were not always passed and in at least one case, one was passed but struck down as
unconstitutional.

Public Necessity
Surocco v. Geary, Supreme Court of California (1853)
(3 Cal. 69)
This was an action, commenced in the court below, to recover damages for blowing up and destroying
the plaintiffs’ house and property, during the fire of the 24th of December, 1849.
Geary, at that time Alcalde of San Francisco, justified, on the ground that he had the authority, by
virtue of his office, to destroy said building, and also that it had been blown up by him to stop the
progress of the conflagration then raging.
It was in proof, that the fire passe d over and burned beyond the building of the plaintiffs’, and that at
the time said building was destroyed, they were engaged in removing their property, and could, had
they not been prevented, have succeeded in removing more, if not all of their goods. The cause was
Defenses Against the Intentional Torts | 197

tried by the court sitting as a jury, and a verdict rendered for the plaintiffs, from which the defendant
prosecutes this appeal under the Practice Act of 1850.
The only question for our consideration is, whether the person who tears down or destroys the house
of another, in good faith, and under apparent necessity, during the time of a conflagration, for the
purpose of saving the buildings adjacent, and stopping its progress, can be held personally liable in an
action by the owner of the property destroyed.
*73 This point has been so well settled in the courts of New York and New Jersey, that a reference to
those authorities is all that is necessary to dete rmine the present case. The right to destroy property,
to prevent the spread of a conflagration, has been traced to the highest law of necessity, and the
natural rights of man, independent of society or civil government. “It is referred by moralists and
jurists to the same great principle which justifies the exclusive appropriation of a plank in a shipwreck,
though the life of another be sacrificed; with the throwing overboard goods in a tempest, for the
safety of a vessel; with the trespassing upon the lands of another, to escape de ath by an enemy. It rests
upon the maxim, Necessitas inducit privilegium quod jura privata.”
The common law adopts the principles of the natural law, and places the justification of an act
otherwise tortious precisely on the same ground of necessity. [c] This principle has be en familiarly
recognized by the books from the time of the saltpe tre case, and the instances of tearing down
houses to prevent a conflagration, or to raise bulwarks for the defence of a city, are made use of
as illustrations, rather than as abstract cases, in which its exercise is permitted. At such times, the
individual rights of property give way to the higher laws of impending necessity.
A house on fire, or those in its immediate vicinity, which serve to communicate the flames, becomes a
nuisance, which it is lawful to abate, and the private rights of the individual yie ld to the considerations
of general convenience, and the interests of society. Were it otherwise, one stubborn person might
involve a whole city in ruin, by refusing to allow the destruction of a building which would cut off the
flames and check the progress of the fire, and that, too, when it was perfectly evident that his building
must be consumed.
The respondent has invoked the aid of the constitutional provision which prohibits the taking of
private property for public use, without just compensation being made therefor. This is not “a taking of
private property for public use,” within the me aning of the Constitution. The right of taking individual
property for public purposes *74 belongs to the State, by virtue of her right of eminent domain, and
is said to be justified on the ground of state ne cessity; but this is not a taking or a destruction for a
public purpose, but a destruction for the benefit of the individual or the city, but not properly of the
State. The counsel for the respondent has asked, who is to judge of the ne cessity of the destruction of
property? This must, in some instances, be a difficult matter to determine.
The ne cessity of blowing up a house may not exist, or be as apparent to the owner, whose judgment
is clouded by intere st, and the hope of saving his property, as to others. In all such cases the conduct
of the individual must be regulated by his own judgment as to the e xigencies of the case. If a building
should be torn down without apparent or actual necessity, the parties concerned would undoubtedly
be liable in an action of trespass. But in every case the ne cessity must be cle arly shown. It is true,
198 | Defenses Against the Intentional Torts

many cases of hardship may grow out of this rule, and property may often in such cases be destroyed,
without necessity, by irresponsible persons, but this difficulty would not be obviated by making the
parties responsible in every case, whether the necessity existed or not.
The legislature of the State possess[es] the power to regulate this subje ct by providing the manner in
which buildings may be destroyed, and the mode in which compensation shall be made; and it is to be
hoped that something will be done to obviate the difficulty, and prevent the happening of such events
as those suppose d by the respondent’s counsel. In the absence of any legislation on the subje ct, we
are compelled to fall back upon the rules of the common law.
The e vidence in this case cle arly establishes the fact, that the blowing up of the house was necessary,
as it would have be en consumed had it been left standing. The plaintiffs cannot recover for the value of
the goods which they might have saved; they were as much subje ct to the ne cessities of the occasion
as the house in which the y were situate; and if in such cases a party was held liable, it would too
frequently happen, that the delay caused by the removal of the goods would render the destruction of
the house useless.
*75 The court below clearly erred as to the law applicable to the facts of this case. The testimony will
not warrant a verdict against the defendant. Judgment reversed.
Note 1. Can you think of other doctrines you have le arned that might be relevant here, or other areas
in which you have encountered limitations on tort liability that are traceable to concerns like those
in Surocco? What justifications, and what sorts of tradeoffs, do situations like this one involve, for
tort law? That is, in circumstances in which dangers are present, hazards are de veloping rapidly or
changing, and the parties possess only imperfect information, the risks of any decision are high yet
proceeding with the regular amounts of caution may impose unacceptable delays and costs. How
should tort law balance these competing concerns?
Note 2. Note

that this case

predates The California Tort Claims Act (1963) in which the

state

government waived some sovereign immunity, though not all; municipal entities would likely have
been unreachable at this time other than by suing the individuals involved, as in this case. Nonetheless,
in the

way that the Surocco court applies the substantive

law, it e
ffectively carves a sphere

of

discretionary decisionmaking for the Alcalde that shares common ground with the discretionary
function exception you have learned about above.
Note 3. Constitutional questions. What concerns might you have regarding the seizure of private
property by government officials? What sort of proof should be required of governments asserting
this defense? The “Takings Clause” under the Fifth Amendment of the United States Constitution
prevents the federal government from taking “private property” even “for public use, without just
compensation.” The Fourteenth Amendment extends the Fifth Amendment to state governments.
Ordinarily, then if the government uses or destroys private property, even for public use, it must pay
“just compensation.” How well do you think tort law’s “public necessity” defense squares with this
constitutional protection?

Defenses Against the Intentional Torts | 199

Private Necessity
Vincent v. Lake Erie Transp. Co., Supreme Court of Minnesota. (1910)
(109 Minn. 456)
The ste amship Reynolds, owned by the defendant, was for the purpose of discharging her cargo on
November 27, 1905, moored to plaintiff’s dock in Duluth. While the unloading of the boat was taking
place a storm from the northeast developed, which at about 10 o’clock p. m., when the unloading
was completed, had so grown in violence that the wind was then moving at 50 miles per hour and
continued to increase during the night. There is some e vidence that one, and perhaps two, boats were
able to enter the harbor that night, but it is plain that navigation was practically suspended from the
hour mentioned until the morning of the 29th, whe n the storm abated, and during that time no master
would have be en justified in attempting to navigate his vessel, if he could avoid doing so. After the
discharge of the cargo the Reynolds signaled for a tug to tow her from the dock, but none could be
obtained because of the se verity of the storm. If the line s holding the ship to the dock had be en cast
off, she would doubtless have drifted away; but, instead, the lines were kept fast, and as soon as one
parted or chafed it was replaced, sometimes with a larger one. The vessel lay upon the outside of the
dock, her bow to the e ast, the wind and waves striking her starboard quarter with such force that she
was constantly *458 being lifted and thrown against the dock, resulting in its damage, as found by the
jury, to the amount of $500.
We are satisfied that the character of the storm was such that it would have be en highly imprudent
for the master of the Reynolds to have attempted to leave the dock or to have permitted his vessel
to drift a way from it. One witness testified upon the trial that the vessel could have be en warped
into a slip, and that, if the attempt to bring the ship into the slip had faile d, the worst that could have
happened would be that the vessel would have be en blown ashore upon a soft and muddy bank. The
witness was not present in Duluth at the time of the storm, and, while he may have be en right in his
conclusions, those in charge of the dock and the vessel at the time of the storm were not required
to use the highest human intelligence, nor were the y required to resort to every possible e xperiment
which could be suggested for the preservation of their property. Nothing more was demanded of them
than ordinary prudence and care, and the record in this case fully sustains the contention of the
appellant that, in holding the vessel fast to the dock, those in charge of her exercised good judgment
and prudent seamanship.
It is claimed by the respondent that it was negligence to moor the boat at an exposed part of the
wharf, and to continue in that position after it became apparent that the storm was to be more than
usually severe. We do not agree with this position. The part of the wharf where the vessel was moored
appears to have be en commonly used for that purpose. It was situated within the harbor at Duluth,
and must, we think, be considered a proper and safe place, and would undoubtedly have be en such
during what would be considered a very severe storm. The storm which made it unsafe was one which
surpassed in violence any which might have reasonably been anticipated.
200 | Defenses Against the Intentional Torts

The appellant contends by ample assignments of error that, because its conduct during the storm
was rendered necessary by prudence and good seamanship under conditions over which it had no
control, it cannot be he ld liable for any injury resulting to the property of others, and claims that the
jury should have be en so instructed. An analysis of the charge given by the trial court is not necessary,
as in our opinion the only question for the jury was the amount of damages *459 which the plaintiffs
were entitled to recover, and no complaint is made upon that score.
The situation was one in which the ordinary rules regulating properly rights were suspended by forces
beyond human control, and if, without the direct intervention of some act by the one sought to be held
liable, the property of another was injured, such injury must be attributed to the act of God, and not
to the wrongful act of the person sought to be charged. If during the storm the Reynolds had entered
the harbor, and while there had be come disable d and been thrown against the plaintiffs’ dock, the
plaintiffs could not have recovered. Again, if which attempting to hold fast to the dock the lines had
parted, without any negligence, and the vessel carried against some other boat or dock in the harbor,
there would be no liability upon her owner. But here those in charge of the vessel deliberately and by
their direct efforts held her in such a position that the damage to the dock resulted, and, having thus
preserved the ship at the e xpense of the dock, it seems to us that her owners are responsible to the
dock owners to the extent of the injury inflicted.
In Depue v. Flatau, 100 Minn. 299, this court held that where

the

plaintiff, while

lawfully in the

defendants’ house, became so ill that he was incapable of traveling with safety, the defendants were
responsible to him in damages for compelling him to leave the premises. If, however, the owner of the
premises had furnished the traveler with proper accommodations and medical attendance, would he
have been able to defeat an action brought against him for their reasonable worth?
In Ploof v. Putnam, 71 Atl. 188, the Supreme Court of Vermont held that where, under stress of weather,
a vessel was without permission moored to a private dock at an island in Lake Champlain owned by the
defendant, the plaintiff was not guilty of trespass, and that the defendant was responsible in damages
because his representative upon the island unmoored the vessel, permitting it to drift upon the shore,
with resultant injuries to it. If, in that case, the vessel had been permitted to remain, and the dock had
suffered an injury, we believe the shipowner would have been held liable for the injury done.
*460 Theologians hold that a starving man may, without moral guilt, take what is necessary to sustain
life; but it could hardly be said that the obligation would not be upon such person to pay the value of
the property so taken when he became able to do so. And so public ne cessity, in times of war or peace,
may require the taking of private property for public purposes; but under our system of jurisprudence
compensation must be made.
Let us imagine in this case that for the be tter mooring of the vessel those in charge of her had
appropriated a valuable cable lying upon the dock. No matter how justifiable such appropriation might
have be en, it would not be claime d that, because of the overwhelming necessity of the situation, the
owner of the cable could not recover its value.
This is not a case where life or property was menaced by any object or thing belonging to the plaintiff,
the destruction of which became ne cessary to prevent the threatened disaster. Nor is it a case where,
Defenses Against the Intentional Torts | 201

because of the act of God, or unavoidable accident, the infliction of the injury was beyond the control
of the defendant, but is one where the de fendant prudently and advisedly availed itself of the plaintiffs’
property for the purpose of preserving its own more valuable property, and the plaintiffs are entitled
to compensation for the injury done.
Order affirmed.
LEWIS, J.
I dissent. It was assumed on the trial before the lower court that appellant’s liability depended on
whether the master of the ship might, in the e xercise of reasonable care, have sought a place of
safety before the storm made it impossible to le ave the dock. The majority opinion assumes that the
evidence is conclusive that appellant moored its boat at respondent’s dock pursuant to contract, and
that the vessel was lawfully in position at the time the additional cables were fastened to the dock,
and the reasoning of the opinion is that, because appellant made use of the stronger cables to hold
the boat in position, it became liable unde r the rule that it had voluntarily made use of the property of
another for the purpose of saving its own.
*461 In my judgment, if the boat was lawfully in position at the time the storm broke, and the master
could not, in the e xercise of due care, have left that position without subjecting his vessel to the
hazards of the storm, the n the damage to the dock, caused by the pounding of the boat, was the
result of an inevitable accident. If the master was in the e xercise of due care, he was not at fault. The
reasoning of the opinion admits that if the ropes, or cables, first attached to the dock had not parted,
or if, in the first instance, the master had used the stronger cables, there would be no liability. If the
master could not, in the e xercise of reasonable care, have anticipated the se verity of the storm and
sought a place of safety before it became impossible, why should he be required to anticipate the
severity of the storm, and, in the first instance, use the stronger cables?
I am of the opinion that one who constructs a dock to the navigable line of waters, and enters into
contractual relations with the owner of a vessel to moor at the same, takes the risk of damage to his
dock by a boat caught there by a storm, which event could not have be en avoided in the e xercise of
due care, and further, that the legal status of the parties in such a case is not changed by renewal of
cables to keep the boat from being cast adrift at the mercy of the tempest.
Note 1. Does the private ne cessity doctrine, expounded upon here in Vincent, seem to you to be
consistent with, or to diverge from, the principle that there is no duty to rescue at common law? What
principles does it reflect, and what concerns does it seem to try to balance?
Note 2. Does private ne cessity create a categorical defense (like an immunity?) or a fact-based defense
(like a privilege or other form of circumstance-specific defense)? Why might this matter?
Note 3. Ideological Underpinnings of the Necessity Doctrines. Consider the moral and philosophical
values expressed in the public and private ne cessity doctrines as defenses to trespass: they take
a position on the value and obje ctive defensibility of various actions that may seem subjectively
necessary to the actor at the time of the unauthorized use of land or property. In a thoughtful article
exploring different conceptions of property against a backdrop of cultures, political institutions
202 | Defenses Against the Intentional Torts

and intellectual theories, Professor Monica E. Eppinger notes the constructedness of the

law’s

understanding of private and public uses of space. She provides a hypothetical as a means of exploring
the law’s unstated commitments to certain values over others:
Four adults, desperate to find a home at an affordable cost, together with their families
(including several children) inhabit homes in a development project suspended due to
delayed authorizations. The four friends and their families work on both the buildings and
the land to enhance their living conditions (for instance, by painting the walls and adding
a little garden). After a couple of months, the legal manager of the land discovers them
and brings legal action against them. Monica E. Eppinger, The Challe nge of the Commons:
Beyond Trespass and Necessity, 66 Am. J. Comp. L. 1, 17 (2018) (citations omitted)
Eppinger surveys relevant doctrines in tort and property law and explores the “necessity” defenses:
“If the use were in pursuit of a public good, for example using vacant premises to provide
volunteer healthcare to irregular migrants, … the defense the defendant would assert is
public rather than private ne cessity. …If the defendant trespassed out of public necessity,
unlike private ne cessity, she owes no compensation even if the property was harmed. The
public necessity defense would only apply if the defendant could demonstrate
commandeered the

building to avert an imminent threat to the

she

public—for example,

preventing or alleviating a deadly epidemic. … A situation that gives rise to necessity is
imagined as an “emergency” and the privilege must be e xercised “in a reasonable time
and in a reasonable manner.” A court during the Great Depression affirmed convictions of
several in a crowd convicted of stealing groceries, over defendants’ objections that they
were denied the right to present the defense of “economic necessity.” Moreover, entry
into a dwelling without permission is treated with a higher degree of disfavor than entry
into fields, yards, or other forms of real property. Even if a privilege of private ne cessity is
recognized, the trespasser is liable for damage to the property.” Id. at 18.
Eppinger concludes that the legal manager would be successful in ousting the families on the basis of
trespass. She observes:
“Until homelessness is considered a matter in which parties hold a “common interest,” it
is likely that the law will excuse trespass to tear down a home to save other buildings
from fire as a matter of public necessity, but not excuse entry into unused dwelling spaces
to save individuals from homelessness…. Such is the strength of the ide ology of private
property, and the dominance of the right to exclude, that in the United States, people
priced out of housing markets and into homelessness do not routinely shelter in vacant
buildings (as envisioned in the hypothetical), as they presume title holde rs to be arme d
with legal doctrines to facilitate evictions.” Id. at 23.
Is homelessness exacerbated by entrenched default positions in the private law of tort and property?
Are Professor Eppinger’s concerns something tort law should consider as its common law continues
to develop? If so, are courts the appropriate source of change on the issue , or should changes

Defenses Against the Intentional Torts | 203

occur at the legislative or administrative le vels? If no changes are called for, what are the strongest
justifications for retaining the status quo?

Check Your Understanding – Set 18

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=49#h5p-45

204 | Defenses Against the Intentional Torts

PART III

MODULE 3: NEGLIGENCE
Negligence is the quintessential tort claim. While its four elements—duty, breach, causation and
harm—must each individually be proven as with any other tort, the he art of the action will turn on a
simple question: did the defendant do something unreasonable that harmed the plaintiff? In a small
subset of cases, an affirmative answer will not lead to liability because the de fendant owed no duty
to that particular plaintiff or because the harm the plaintiff suffered was not proximately caused by
the defendant. In another subset of cases, liability will not attach because the plaintiff’s conduct was
also negligent to a level deemed meaningful in that jurisdiction, or the plaintiff and defendant may
be forced to share the costs of the harm suffered. Finally, in some cases, the defendant’s wrongful
conduct will be forgiven because of some immunity available to the de fendant or some flaw in the
plaintiff’s case, such as failure to file within the statute of limitations. The core question of culpability,
however, will always return to whether the thing the defendant did, or failed to do, requires—or should
require—that the defendant be held accountable to the plaintiff who suffered as a result.
As you have already learned, “reasonableness” is a standard, not a rule, and determining what is
reasonable proves to be intricate, legally, howeve r simple the inquiry may seem on the surface.
Accordingly, most torts courses dedicate the bulk of the course to understanding how to analyze
and prove the se cond prong of negligence: whether the defendant breached their duty of due care.
Don’t be distracted by the use of the word “duty” in this common phrasing; duty analysis concerns
whether a defendant owes any obligations to the

plaintiff in question; breach analysis concerns

what was reasonable to expect the defendant to do or refrain from doing under the circumstances.
The third prong, causation, considers whether the particular conduct associated with the breach
caused the plaintiff’s harm and the fourth requires the plaintiff prove harm did in fact occur. Note
that if the defendant does breach their duty of care and the plaintiff is harmed but the breach is
not the action that caused the harm, the n the required “causal nexus”—the link in the chain of
causation—is not present and the claim will fail. If a surgeon performs drunk but skillfully and,
unrelatedly, the anesthesiologist makes an error that it was not the

surgeon’s duty or capacity

to prevent or detect, the patient cannot recover against the drunk surgeon. The breach of duty
implicated by performing surgery drunk will not matter for the purposes of the plaintiff’s negligence
claim since the anesthesiologist’s error “severs the chain of causation.”
Causation also includes an inquiry into proximate cause, which is essentially a policy determination
that allows the factfinder to limit liability in certain kinds of cases. Each of these prongs involves
further complexity, naturally, but it may be helpful at the outse t to understand what the combined
effect of the inquiries is meant to yield, namely, a legal conclusion about the reasonableness of the
defendant’s actions and their materiality to the plaintiff’s harms.
In the hypotheticals that follow, you will be asked to focus on one aspe ct of a negligence claim to
reinforce the general sense you are gaining of how each one operates. The material in the cases
to come will, of course, teach you the proper tests for conducting the analysis pertaining to each
Module 3: Negligence | 205

element. This introduction is meant to illustrate how each element operates in isolation and to help
prepare you for further study. It also may serve as a way for you to test your intuitions about the law
against the existing legal rules to see where they converge or diverge.

Expand On Your Understanding – Drunken Surgeon Hypotheticals

In the hypotheticals that follow, you will be asked to focus on one aspect of a negligence claim to
reinforce the general sense you are gaining of how each one operates. The material in the cases to come
will, of course, teach you the proper tests for conducting the analysis pertaining to each element. This
introduction is meant to illustrate how each element operates in isolation and to help prepare you for
further study. It also may serve as a way for you to test your intuitions about the law against the existing
legal rules to see where they converge or diverge. Turn each card to reveal the answer.

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=51#h5p-46

206 | Module 3: Negligence

14. Negligence: Duty
Overview of Duty
Duty, the first of the four elements required in a negligence action, has a special character.
First, it is the only element of negligence decided by the court as a question of law, and thus
operates as a gate-keeping mechanism to help define the contours of tort law and limit the scope
of potential liability. To the e xtent that the system defines what tort law protects and against what,
the duty inquiry has developed such that defendants do–or do not—owe a duty of care with respect
to particular classes of potential plaintiffs, for particular types of losses, or on particular classes of
fact patterns (since accidents occur and do fall, generally, into recognizable types). Judges decide
the question of duty partly because the y are thought to be be tter at deciding categorical kinds of
questions. Judges are thought to be be tter able to see recurring patterns because over the course
of a career on the bench a judge will de cide and read many cases. Most jurors are likely to serve as
factfinders only a few times in their lives, if ever. Jury expertise is thought to consist of everyday
experience applicable to considering the particular facts of the single case before them. Yet judges
have the capacity to “see the big picture” and categorize similar fact patterns together. Judges also
have legal training that helps them to align the policy goals of tort law with the kinds of cases that
ought to be decided at this earliest point in the negligence analysis.
Second, there has be en a major evolution in how duty has been conceived, and it’s relevant to your
understanding of the cases courts are de ciding in the present era. The standard for duty in most
cases today is whether it was foreseeable that the defendant’s actions would harm the plaintiff. If
it was foreseeable, then under this modern view, the defendant owed a plaintiff a duty unless some
special exception or limitation exists. “Foreseeable” is a term just about as unhelpful as “reasonable”
in the se nse that its meaning is malleable. Nonetheless, that’s the general contemporary approach.
th

Sometimes it is attributed to a late 19

century case, Heaven v. Pender (1883) 11 Q.B.D. 503, 509, which

stated:
“[W]henever one person is by circumstances placed in such a position with regard to another
that every one of ordinary sense who did think would at once recognize that if he did not use
ordinary care and skill in his own conduct with regard to those circumstances he would cause
danger of injury to the person or property of the other, a duty arises to use ordinary care and
skill to avoid such danger.”
The Restatement now reflects this view: “Ordinarily, a person engaging in conduct that creates risks
to others has a duty to exercise reasonable care to avoid causing them physical harm.” Restatement
(Third) of Torts § 6, cmt. b (2010)
However, historically at common law, it was virtually the opposite of this generalized view of duty.
There was rarely an independent duty for you to act or to compensate some one for the losses they
Negligence: Duty | 207

had suffered, unless you stood in a particular relationship with them. You were not liable, generally for
“nonfeasance,” or choosing to do nothing. If you had contracted to help or provide services for them
and you didn’t perform on that contract, their remedy was in contract law. If in providing services,
you committed misconduct (“misfeasance”) or otherwise behaved carelessly and caused harm, you
had breached your duty of care and the pe rson injured by your conduct could recover in tort law.
Technically there wasn’t a breach of contract since you’d carried out your promise unde r the contract;
tort law provided an alternate me ans of redress for a problem that wasn’t breach but rather some sort
of injury. The duty in tort law arose be cause of the contract and the corresponding legal obligation
to compensate for the injury caused by the careless fulfillment of the contract sounded in tort law.
Consequently, this may have reinforced the vie w that without a contract, recovery in tort was nearly
impossible without some alternative source of duty flowing between the parties. Indeed, that was one
way courts kept the early scope of negligence law narrow.
The concept of “privity,” a contract-like relationship, arose to define a legal relationship broader than
a contract, and courts allowed tort recovery for those who “stood in privity” with one another. For
instance, a customer who bought goods or chattels from a merchant stood in privity with them
(despite the lack of a formal contract) but their non-purchasing spouse did not. This caused some
case outcomes that seemed puzzling and unfair; why shouldn’t the non-purchasing spouse be able
to recover in tort law when the product caused them injury and they were very much a foreseeable
user of the product? Over time, the concept of privity continued to expand in piecemeal and the
restrictions on recovery relaxed until the requirement of privity, too, yielded. In cases where there was
no contract or privity, courts increasingly looked for a “special relationship” between parties. Under
this approach, while strangers did not owe e ach other a duty to assist each other, those who stood
in a special relationship even without a contract or privity—such as family members, close friends or
members of a group engaged in an activity together—were commonly found to have a duty arising
out of that special relationship. In addition, when a person voluntarily undertook a rescue of some
kind (or simply stepped in to help), their actions created a duty to follow through with what they
had offered, behaving reasonably under the circumstances. These means of creating a duty—through
special relationships or voluntary undertakings—remain important in the legal system today.
The e arly twentieth century witnessed the e xpansion of duty to a sphere of foreseeable people who
might suffer harms from one’s tortious conduct and who thus deserved compensation regardless
of contract or privity. Courts routinely articulated the scope of the duty to behave reasonably in
language that left no room for doubt: “[E] very person owes to all others a duty to exercise ordinary
care

to guard against injury which naturally flows as a reasonably probable

and foreseeable

consequence of his act, and … such duty does not depend upon contract, privity of interest or the
proximity of relationship, but extends to remote and unknown persons.” Union Wire Rope Corp., 31
Ill.2d 69, 86 (1964) These changes in the law largely originated in the domain of product liability law
where the e xpansion of duty paved the way for the broader default rule that has come to be the
majority rule: everybody owes a duty of care to refrain from conduct that foreseeably harms others.
In the contemporary era, however, stubborn exceptions to the traditional rule of no duty remain,
creating a diversity of rules with regard to duty. In a subset of cases there remains no duty while in
other areas (such as premises liability and the duty to compensate for purely emotional losses) that
208 | Negligence: Duty

old rule has be en eroded over time to a patchwork of rules that create duties to take certain steps
under certain circumstances. These have some times been classified as “general” versus “affirmative”
duties, intended to track the categories of “misfeasance” (which there was a general duty to avoid) and
“nonfeasance” (which gave rise to no duty except in cases where a so-called affirmative duty arose
because of a special relationship or voluntary undertaking as noted above, or under other exceptions).

An Updated Way to Categorize Types of Duty
Although this has been the way law students were traditionally instructed on the law of duty, these
terms (misfeasance/nonfeasance
; general/affirmative

duty) are

not that useful. Students and

professors alike have long found them very difficult to define and apply. Consider that “misfeasance”
could include both negligently fixing your car’s brake
s by going to an unlicensed irresponsible
mechanic or failing to take action with respect to your service light’s warning that your brakes might
fail soon. Yet failing to take action sounds more like “nonfeasance” which in theory gives rise to no
duty. There are formalistic ways to arrive at the conclusion that in fact there is a duty to get your
brakes fixed—cars are dangerous vehicles and some states find there is a “non-delegable duty” to
make sure your vehicle is safe for driving, for instance. But that general problem of action versus
inaction remains a thorny one and this division has puzzled theorists.
Beyond that, the terms are outdated and hearken back to an era when landlords owed their tenants
no duty and even landowners’ duties to entrants were more tightly circumscribed. Recently, two
preeminent torts scholars have called for a recognition that the “exceptions” formerly understood
in terms of “affirmative duties” can be understood either as articulations of the general duty or as
subsets of now well-settled law in which the default is no longer “no duty.”
These distinctions are problematic in both descriptive and normative respects. On a descriptive
level, many cases of what tort law calls nonfeasance

are

difficult, if not impossible, to

distinguish from misfeasance
. Similarly, sometimes even misfeasance does not look like
misfeasance; there are instances of what tort law calls misfeasance that are hard to distinguish
from nonfeasance. On a normative

le vel, meanwhile, the distinctions’ significance

difficult to discern. Even in paradigm cases where

the

de scriptive

can be

distinction between

misfeasance and nonfeasance is cle ar—such as the case of the driver who hits the pe destrian
versus the bystander who fails to rescue—the normative distinction can be elusive. Kenneth S.
Abraham and Leslie Kendrick, There’s No Such Thing As Affirmative Duty, 104 Iowa L. Rev. 1649
(2019).
The challenge in offering an updated, revisionist approach to duty lies in the fact that the other
resources students may consult (hornbooks, commercial outlines, bar preparation materials) and the
older cases they read will likely contain some references to these outdated terms. The virtue in
revisionism, however, lies in offering the opportunity for greater conceptual clarity and what is now
a more accurate vie w of the case law. To that end, this textbook will refer to the older categories that
have be en used to define classes of duties and their “exceptions” (such as voluntary undertakings and
Negligence: Duty | 209

special relationships; those are still “good law”). However, I dispense with the language of “affirmative
duty” and, following Abraham and Kendrick, try to situate

the

duty cases in the legal contexts

in which these contemporary rules have de veloped. I will not emphasize the “misfeasance” versus
“nonfeasance” distinction any further as I do not believe it is productive and years of conversations
with students has persuaded me that they do not find it helpful either.

Duties By Type of Actor and Type of Harm
Special duties historically have applie d to certain classes of actors, including common carriers (as
you learned in the discussion preceding Gulf v. Luther), innkeepers and landowners. It was expedient
for courts to determine the legal obligations of whole classes of entities in this way since the rule s
affected so many people. Creating predictable patterns of potential liability allowed businesses to
plan for or prevent it and to conduct their operations with some amount of awareness of with their
likely legal risk. With respect to landowners (as well as possessors and occupiers of land), there is a
significant jurisdictional divergence you will want to keep straight so you learn and differentiate both
the majority and minority approaches.
In my view, there is also a hybrid nature to the way duty is determined in cases associated with
property. Ordinarily, the question of duty is distinct from the conduct that the duty requires. For
instance, to say that a common carrier has a duty (or even a heightened duty in some jurisdictions)
does not specify what that requires them to do. So-called “premises liability,” which flows from the
duties one has in association with maintaining property for those who enter it is unusual in that
the duty may be accompanied by particular actions the duty requires (such as a duty to warn of a
hidden danger or a duty to fence off a dangerous feature). That premises liability diverges from the
general framework makes determining the duty of landowners unusually complex at times. Students
(and courts!) find the distinctions between duty and breach of duty understandably confusing so
anticipating the complexity and confusion somewhat can be helpful.
A final way that courts have modulated the scope of tort law and used duty as a gatekeeping measure
is through the kinds of losses for which tort law permits recovery. Courts have consistently held that
parties may not recover for purely economic losses and this has been framed in terms of duty: there is
no duty to prevent purely economic losses to another. For most of the history of U.S. tort law, courts
were reluctant to allow parties to recover for purely emotional losses, as well. That restriction has
been eroded over time with the rise of actions for intentional infliction of emotional distress as well
as negligent infliction of emotional distress. In practice, both torts are rarely viable alone, without
other accompanying actions. In almost all jurisdictions that recognize the ne gligent version of the
tort, the action is limited by requirements that reflect the longstanding judicial reluctance to open
the floodgates to emotional distress claims more broadly. This means that there is effectively only a
limited duty to prevent purely emotional losses; the duty will depend on a number of factors set out
in a given jurisdiction.

210 | Negligence: Duty

Expand On Your Understanding – Choking Victim Duty Hypotheticals

Review the following hypotheticals. Turn each card to reveal the answer.

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=52#h5p-47

Questions or Areas of Focus for the Readings:
• Do you agree with where courts do and don’t find a duty exists? Descriptively? Normatively?
• Look for references to the purposes of tort law, even if you find them by “reading between the
lines”; what role can you see duty playing as a factor in shaping tort policy?
• When are courts choosing to diverge from older rules versus pronouncing themselves
constrained by prior precedents or rules? What do you notice about fact patterns in which
courts do or don’t announce a change?
• In what ways do you see duty analysis reflecting sociological issues or context? If you changed
the gender of the parties in the cases that follow, or made race or class explicit with respect to
one or the other of the parties, for instance, might the analysis change?

Negligence: Duty | 211

15. Duty As a Function of Foreseeability
(Socratic Script)
The general rule of duty depends on foreseeability. Where harms are foreseeable, both moral and
legal notions suggest that it is proper to prevent them unless the costs or risks of doing so outweigh
the costs or risks of not doing so. Efficiency, fairness, deterrence and compensation are all powerful
rationales for pinning duty to foreseeability—in theory. In practice, determining what is foreseeable
has commonly been an exercise in judicial policymaking with lines drawn that sometimes seem
coherent and principled and other times seem outcome-driven or poorly reasoned.
Foreseeability has often played a role in constricting the scope of liability but it expanded the scope
of duty with respect to landlord liability. Were landlords liable to their tenants and their guests, when
third parties committed crimes for which the landlords were not directly responsible? The common
law answer was no, reflecting the default to “no duty.” However, a landmark case in 1970, Kline v.
1500 Massachusetts Ave., signaled courts growing willingness to shifting toward finding a duty in some
cases of landlord responsibilities to prevent third-party crimes. The following case also provides a
helpful overview of the changing notions of duty over time.
Note: The case mentions a sexual assault in the background of the fact pattern but does not dwell on
or recount it beyond that.

Walls v. Oxford Management Co., Inc., Supreme Court of New
Hampshire (1993)
(137 N.H. 653)
[The legal question is: Does New Hampshire law impose a duty on landlords to provide se curity to
protect tenants from the criminal attacks of third persons?]
On December 13, 1988, the plaintiff, Deanna Walls, was sexually assaulted in her vehicle, which was
parked on the premises of the Bay Ridge Apartment Complex in Nashua. The plaintiff lived with
her mother, who leased an apartment at Bay Ridge. Gerard Buckley was arrested and subsequently
convicted of sexually assaulting the plaintiff. Bay Ridge is owned by defendant Nashua–Oxford Bay
Associates Limited Partnership (Nashua–Oxford), and managed by defendant Oxford Management
Company, Inc. (Oxford). It consists of 412 apartments located in fourteen buildings. During the two
years prior to the assault, the Bay Ridge complex had been the site of a number of crimes directed
against property, including eleven automobile thefts, three attempted automobile thefts, and thirtyone incidents involving criminal mischief/theft. No sexual assaults or similar attacks against persons
had been reported.

212 | Duty As a Function of Foreseeability (Socratic Script)

The plaintiff brought this action in federal court, charging that the defendants “had a duty to hire
and contract with a competent management company, had a duty to provide reasonable se curity
measures for the protection of residents of Bay Ridge, a duty to warn residents of its lack of security,
as well as a duty to warn residents of the numerous criminal activities which had taken place on the
premises of Bay Ridge and in the vicinity of Bay Ridge.”
The plaintiff alleges that the defendants breached these duties, and that the breach was a proximate
cause of the sexual assault. *656
1. Landlord’s Duty to Secure Tenants Against Criminal Attack
The issues raised by the

first question [before] the

court at the

confluence

of two seemingly

contradictory principles of law. On one hand lie s the accepted maxim that all persons, including
landlords, have a duty to exercise reasonable care not to subje ct others to an unreasonable risk of
harm. See Sargent v. Ross, 113 N.H. 388, 391 (1973). On the other hand, a competing rule holds that
private persons have no general duty to protect others from the criminal acts of third persons. See
Restatement (Second) Of Torts § 314 (1965); W. Page Keeton et al., Prosser and Keeton on the Law of Torts,
§ 33, at 201 (5th ed. 1984).
Claims for negligence “rest primarily upon a violation of some duty owed by the offender to the injured
party.” [c] Absent a duty, there is no negligence. Whether a duty exists in a particular case is a question
of law. [cc] Only after a court has determined that a defendant owed a plaintiff a duty, and identified
the standard of care impose d by that duty, may a jury consider the separate question of whether the
defendant breached that duty. [c]
While of paramount importance to the analysis of a claim for negligence, duty “is an exceedingly
artificial concept.” Libbey v. Hampton Water Works Co., 118 N.H. 500, 502, (1978). In some cases, a party’s
actions give rise to a duty. [c] A party who does not otherwise have a duty, but who voluntarily renders
services for another, has been held to a duty of reasonable care in acting. [c] Restatement (Second) Of
Torts, supra §§ 323, 324. In other cases, a duty to act exists based on a special relationship between two
parties. [c] In either case, the scope of the duty imposed is limited by what risks, if any, are reasonably
foreseeable. [c] As a general rule, “a defendant will not be he ld liable for negligence if he could not
reasonably foresee that his conduct would result in an injury or if his conduct was reasonable in light
of what he could anticipate.”
*657 When charged with determining whether a duty exists in a particular case, we ne cessarily
encounter the broader, more fundamental question of “whether the plaintiff’s interests are entitled
to legal protection against the defendant’s conduct.” Libbey, 118 N.H. at 502 (quotation omitted). The
decision to impose liability ultimately rests on “a judicial determination that the social importance
of protecting the plaintiff’s interest outweighs the importance of immunizing the defendant from
extended liability.” Libbey, 118 N.H. at 502. See generally Keeton, supra § 54, at 358 (duty not sacrosanct
in itself, but only expression of sum total of policy considerations).
At one time, landlords enjoyed considerable immunity from “simple rules of reasonable conduct which
govern other persons in their daily activities.” Sargent, 113 N.H. at 391. A landlord owed no general duty
to his tenants, and could be found liable for injuries caused by a defective or dangerous condition
Duty As a Function of Foreseeability (Socratic Script) | 213

on leased property only if the injuries were “attributable to (1) a hidden danger in the premises of
which the landlord but not the tenant [was] aware, (2) premises leased for public use, (3) premises
retained under the landlord’s control, such as common stairways, or (4) premises negligently repaired
by the landlord.” Id. at 392. In Sargent, however, this court abolished landlord immunity, and held
that a landlord has a duty to act as a reasonable person under all the circumstances. Id. at 397.
We acknowledged that “[c]onsiderations of human safety within an urban community dictate that
the landowner’s relative immunity, which is primarily supported by values of the agrarian past, be
modified in favor of negligence principles of landowner liability.” Id. at 396 (quotation omitted).
While we can state without reservation that landlords owe a general duty of reasonable care to
their tenants, our efforts at resolving the first question presented are complicated by the competing
common law rule that private citizens ordinarily have no duty to protect others from criminal attacks.
See generally Restatement (Second) of Torts, supra § 314; Keeton, supra § 33, at 201; Kline v. 1500
Massachusetts Avenue Apartment Corp., 439 F.2d 477, 481 (D.C.Cir.1970). This rule is grounded in the
fundamental unfairness of holding private citizens responsible for the unanticipated criminal acts of
third parties. “Under all ordinary and normal circumstances, in the absence of any reason to expect
the contrary, the actor may reasonably proceed upon the assumption that others will obey the *658
law…. Although [crimes] do occur … they are still so unlikely that the burden of taking continual
precautions against them almost always exceeds the apparent risk.” Keeton, supra § 33, at 201. In
keeping with this rule, courts have largely refused to hold landlords to a general duty to protect
tenants from criminal attack. [c]
We agree that as a general principle, landlords have no duty to protect tenants from criminal attack.
Without question, there is much to be gaine d from efforts at curtailing criminal activity. Yet, we will
not place on landlords the burden of insuring their tenants against harm from criminal attacks.
Our inquiry is not concluded, however, as we must further consider whether exceptions to the general
rule against holding individuals liable for the criminal attacks of others apply to the landlord-tenant
relationship. A review of the law in this area suggests four such exceptions. The first arises when a
special relationship, such as that of innkeeper-guest, or common carrier-passenger, exists between
the parties. See Restatement (Second) of Torts, supra § 314A. Courts have repeatedly held, however,
that a landlord-tenant relationship is not a special relationship engendering a duty on the part of the
landlord to protect tenants from criminal attack. [cc] But se e Kline v. 1500 Massachusetts Avenue, 439
F.2d at 485 (finding landlord-tenant relationship analogous to that of innkeeper-guest).
A second exception arises where “an especial temptation and opportunity for criminal misconduct
brought about by the defendant, will call upon him to take precautions against it.” Keeton, supra § 33,
at 201 (emphasis added). This exception follows from the rule that a party who realizes or should
realize that his conduct has created a condition which involves an unreasonable risk of harm to
another has a duty to exercise reasonable care to prevent the risk from taking effect. Restatement
(Second) of Torts, supra § 321; see also Restatement (Second) of Torts, supra § 448 (criminal act of
third person is superseding cause of harm to another unless defendant could have foreseen that his
negligent conduct increased risk of crime). Accordingly, in the majority of cases in which a landlord
has *659 been held liable for a criminal attack upon a tenant, a known physical defect on the premises
214 | Duty As a Function of Foreseeability (Socratic Script)

foreseeably enhanced the risk of that attack. See, e.g., Braitman v. Overlook Terrace Corp., 68 N.J. 368,
377, 381 (1975) (defective de adbolt on apartment door); Aaron, 758 S.W.2d at 446 (broken window latch);
Duncavage v. Allen, 147 Ill.App.3d 88 (1986) (inoperable lighting; ladder left unattended near unlocked
window).
A third exception is the existence of overriding foreseeability. Some courts have held landlords to
a duty to protect tenants from criminal attacks that were cle arly foreseeable, even if not causally
related to physical defects on the premises. See, e.g., Trentacost v. Brussel, 82 N.J. 214, 218 (1980)
(criminal activity apparent in plaintiff’s neighborhood); Holley v. Mt. Zion Terrace Apartments, Inc., 382
So.2d 98, 100 (Fla.App.1980) (apartment complex plagued by high incidence of serious crime); Kline v.
1500 Massachusetts Avenue, 439 F.2d at 483 (crimes perpetrated against tenants in common area of
apartment complex); Johnston v. Harris, 387 Mich. 569, 573–74 (1972); Faheen By Hebron v. City Parking
Corp., 734 S.W.2d 270, 273 (Mo.App.1987).
The fourth exception derives from the general tort principle that one who voluntarily assumes a duty
thereafter has a duty to act with reasonable care. See Restatement (Second) of Torts, supra §§ 323,
324. Thus, landlords who gratuitously or contractually provide se curity have be en found liable for
removing the security in the face of a foreseeable criminal threat. [cc]
We hold that while landlords have no general duty to protect tenants from criminal attack, such
a duty may arise when a landlord has created, or is responsible for, a known defective condition
on a premises that foreseeably enhanced the

risk of criminal attack. Moreover, a landlord who

undertakes, either gratuitously or by contract, to provide se curity will thereafter have a duty to act
with reasonable care. Where, however, a landlord has made no affirmative attempt to provide se curity,
and is not responsible for a physical defect that enhances the risk of crime, we will not find such a
duty. We reject liability based solely on the landlord-tenant relationship or on a doctrine of overriding
foreseeability.
A finding that an approved exception applies is not dispositive of the landlord’s liability for a tenant’s
injury. Where a landlord’s duty is premised on a defective condition that has foreseeably enhanced
the risk of criminal attack, the question whether the defect *660 was a proximate or legal cause of
the tenant’s injury remains one of fact. Moreover, where a landlord has voluntarily assumed a duty to
provide some de gree of security, this duty is limited by the e xtent of the undertaking. [c] Rowe, 125
Ill.2d at 218–19, 126 Ill. Dec. at 526. For example, a landlord who provides lighting for the e xterior of an
apartment building might be he ld liable for failing to insure that the lighting functioned properly, but
not for failing to provide additional security measures such as patrol services or protective fencing.
The answer to the [***] question is no, subject to the ple ading or proof, as appropriate, of facts
supporting the approved exceptions.
Remanded.
Note 1. Revisiting the purposes of tort law—fairness, compensation, deterrence, efficiency and social
justice—which of these are served (and disserved) by attaching tort liability to landlords for thirdparty criminal attacks suffered by their tenants?

Duty As a Function of Foreseeability (Socratic Script) | 215

Note 2. Whom does a blanket rule on this issue se rve best? If tort liability does not attach to landlords
for third-party criminal activity, what other incentives do landlords have to make their property safer
for the benefit of their tenants? Do you think they are as effective as those that tort law ordinarily
attempts to create? What are the effects, for tenants, of expanding the liability of landlords?

Expand On Your Understanding – Socratic Script: Walls v. Oxford Management

Question 1. What is the holding of the case?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=54#h5p-48

Question 2. Why is a jury not involved in resolving the case?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=54#h5p-49

Question 3. What tension in common law rules does the court identify in its reasoning? Another way of
putting this question is that the court identifies a set of competing default rules; how does it frame those
and how does it tailor its holding in light of them?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=54#h5p-50

Question 4. What does the court mean when it states that it “will not place on landlords the burden of
insuring their tenants against harm from criminal attacks”?

216 | Duty As a Function of Foreseeability (Socratic Script)

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=54#h5p-51

Question 5. What consequences might follow if courts routinely did find that landlords owed their
tenants a general duty of care to prevent criminal attacks?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=54#h5p-52

Tarasoff v. Regents of the University of California is that rare case that many non-lawyers recognize
(and may fear). In the fields of medicine, psychology and social work, the case is routinely taught
because of its impact on the duties of those who be come aware of credible risks to spe cific third
parties. The case surprise d many by finding there was a duty on the part of a therapist to warn a
specific third party who was not his client, even though that meant violating client confidentiality
and even though he had no other relationship with that third party. His client, Prosenjit Poddar, had
threatened harm to a young woman, Tatiana Tarasoff, and Poddar ultimately killed her. There is a
troubling dynamic present in the case, of a mentally unstable young man who, in response to rejection
by a female student, acts out his feelings in deadly violence. As you read, keep in mind what sorts of
expectations the parties involved in such a scenario may have and try to imagine the impact of any
alternative ruling the court could have handed down.

Tarasoff v. Regents of the University of California, Supreme Court of
California (1976)
(551 P.2d 334)
On October 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff. Plaintiffs, Tatiana’s parents, allege that
two months earlier Poddar confided his intention to kill Tatiana to Dr. Lawrence Moore, a psychologist
employed by the Cowell Memorial Hospital at the University of California at Berkeley. They allege
that on Moore’s request, the campus police briefly detained Poddar, but released him when he
appeared rational. They further claim that Dr. Harvey Powelson, Moore’s superior, then directed that
no further action be taken to detain Poddar. No one warned plaintiffs of Tatiana’s peril.
Duty As a Function of Foreseeability (Socratic Script) | 217

Concluding that these facts set forth causes of action against neither therapists and policemen
involved, nor against the Regents of the University of California as their employer, the superior court
sustained defendants’ demurrers to plaintiffs’ second amended complaints without leave to amend.
This appeal ensued.
Plaintiffs’ complaints predicate liability on… defendants’ failure to warn plaintiffs of the impending
danger…. Defendants, in turn, assert that they owed no duty of reasonable care to Tatiana. The most
important …consideration … in establishing duty is foreseeability. As a general principle, a ‘defendant
owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all
risks which make the conduct unreasonably dangerous.’ …
Although … under the common law, as a general rule, one person owed no duty to control the
conduct of another nor to warn those endangered by such conduct, the courts have carved out an
exception to this rule in cases in which the defendant stands in some spe cial relationship to either
the pe rson whose conduct needs to be controlled or in a relationship to the foreseeable victim of
that conduct. Applying this exception to the present case, we note that a relationship of defendant
therapists to either Tatiana or Poddar will suffice to establish a duty of care; as explained in section
315 of the Restatement Second of Torts, a duty of care may arise from either ‘(a) a special relation …
between the actor and the third person which imposes a duty upon the actor to control the third
person’s conduct, or (b) a special relation … between the actor and the other which gives to the other
a right of protection.’
Although plaintiffs’ pleadings assert no special relation between Tatiana and defendant therapists,
they establish as between Poddar and defendant therapists the spe cial relation that arises between
a patient and his doctor or psychotherapist. Such a relationship may support affirmative duties for
the benefit of third persons. Thus, for example, a hospital must exercise reasonable care to control
the behavior of a patient which may endanger other persons. A doctor must also warn a patient if the
patient’s condition or medication renders certain conduct, such as driving a car, dangerous to others.
…
Defendants contend, however, that imposition of a duty to exercise reasonable care to protect third
persons is unworkable be cause therapists cannot accurately predict whether or not a patient will
resort to violence. [***]
We recognize the difficulty that a therapist encounters in attempting to forecast whether a patient
presents a serious danger of violence. Obviously we do not require that the therapist, in making that
determination, render a perfect performance; the therapist need only exercise’ that reasonable degree
of skill, knowledge, and care ordinarily possessed and exercised by members of (that professional
specialty) under similar circumstances.’ …In the instant case, however, the ple adings do not raise any
question as to failure of defendant therapists to predict that Poddar presented a serious danger of
violence. On the contrary, the present complaints allege that defendant therapists did in fact predict
that Poddar would kill, but were negligent in failing to warn. …Weighing the uncertain and conjectural
character of the alleged damage done the patient by such a warning against the pe ril to the victim’s
life, we conclude that professional inaccuracy in predicting violence cannot negate the the rapist’s
duty to protect the threatened victim.
218 | Duty As a Function of Foreseeability (Socratic Script)

The risk that unnecessary warnings may be given is a reasonable price to pay for the lives of possible
victims that may be saved. We would hesitate to hold that the therapist who is aware that his patient
expects to attempt to assassinate the President of the United States would not be obligated to warn
the authorities because the the rapist cannot predict with accuracy that his patient will commit the
crime. …
The revelation of a communication under the above circumstances is not a breach of trust or a
violation of professional ethics; as stated in the Principles of Medical Ethics of the American Medical
Association (1957), section 9: “A physician may not reveal the confidence entrusted to him in the
course of medical attendance … [u]nless he is required to do so by law or unless it becomes necessary
in order to protect the welfare of the individual or of the community.” We conclude that the public
policy favoring protection of the confidential character of patient-psychotherapist communications
must yield to the extent to which disclosure is essential to avert danger to others. The protective
privilege ends where the public peril begins. [***]
The judgment of the superior court in favor of defendants … is reversed, and the cause remanded for
further proceedings consistent with the views expressed herein.
Note 1. Tarasoff provide s the rule that “The protective privilege ends where the public peril begins.” Do
you think it is clear to therapists when that public peril begins? What sorts of methods, or evidence,
do you imagine being helpful to that determination?
Note 2. What are the risks of placing the de termination of “public peril” with a therapist? If a therapist
did warn the third party and it caused worse harm, perhaps because the patient learned about it, or for
other reasons, would the Tarasoff duty have be en satisfied or breached? If a therapist were sufficiently
concerned to warn a third party, should the duty also extend to warning the police? What about to
family members of the therapist’s clients? Are there implications for the no-duty doctrine of receiving
Tarasoff warnings from therapists?
Note 3. The Tarasoff rule has be en limited in some cases (to specific or “identifiable victims”) and in
some states, it has expressly been rejected (with such states reaffirming on the grounds of the no
duty/special relationship rules that therapists have no duty to third-party victims). Before this case,
the general rule was clear: there was no duty to warn arising out of the therapeutic relationship. On
the contrary, there were professional norms and legal obligations of confidentiality to the patient.
As discussed in the introduction to this section, the court uses the term “affirmative” to refer to
duties against the backdrop of that “no-duty” common law default: “Such a relationship may support
affirmative duties for the benefit of third persons.” It does so partly to announce a change in the law.
Indeed, despite finding that there was no special relationship here that would ordinarily “ground”
(or give rise to) a duty, the court finds one on the basis of foreseeability. “The most important
…consideration … in establishing duty is foreseeability”; “a ‘defendant owes a duty of care to all
persons who are foreseeably endangered by his conduct, with respect to all risks which make the
conduct unreasonably dangerous.’”
Tarasoff presents the unusual case in which a court makes a sharp change on the basis of particular
facts and policy rationales, and then subsequent courts, legislators, and the professional or other
Duty As a Function of Foreseeability (Socratic Script) | 219

entities affected by the ruling must make de cisions to adopt, reject, respond in some other fashion
or ignore the case. It is rare that a major ruling and a sudden significant change will be completely
ignored, however. What changes would you recommend in a jurisdiction that had not yet adopted
Tarasoff, and why?
One of the most famous cases you will read in law school, Palsgraf v. Long Island Railroad, concerns
the scope of duty owed to an injured person whose injury you might not anticipate or be able to
foresee. It is often taught as a case about proximate cause—which is how the dissent frames the
issue—but in fact the opinion concerns the scope of responsibility to an unforeseeable victim and the
holding is framed in terms of duty.

Palsgraf v. Long Island R. Co., Court of Appeals of New York (1928)
(248 N.Y. 339) Justice Cardozo
Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway
Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One
of the men reached the platform of the car without mishap, though the train was already moving.
The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall.
A guard on the car, who had held the door open, reached forward to help *341 him in, and another
guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon
the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In
fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The
fireworks when they fell exploded. The shock of the e xplosion threw down some scales at the other
end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues.
The conduct of the defendant’s guard, if a wrong in its relation to the holder of the package, was
not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not negligence
at all. Nothing in the situation gave notice that the falling package had in it the potency of peril
to persons thus removed. Negligence is not actionable unless it involves the invasion of a legally
protected interest, the violation of a right. ‘Proof of negligence in the air, so to speak, will not do.’
Pollock, Torts (11th Ed.) p. 455; Martin v. Herzog, 228 N. Y. 164, 170, Cf. Salmond, Torts (6th Ed.) p. 24.
‘Negligence is the absence of care, according to the circumstances.’ [c]
The plaintiff, as she stood upon the platform of the station, might claim to be protected against
intentional invasion of her bodily security. Such invasion is not charged. She might claim to be
protected against unintentional invasion by conduct involving in the thought of reasonable men an
unreasonable hazard that such invasion would ensue. These, from the point of view of the law, were
the bounds of her immunity, with perhaps some rare e xceptions, survivals for the most part of ancient
forms of liability, where conduct is held to be at the peril of the actor. *342 If no hazard was apparent
to the e ye of ordinary vigilance, an act innocent and harmless, at least to outward seeming, with
reference to her, did not take to itself the quality of a tort because it happened to be a wrong, though
apparently not one involving the risk of bodily insecurity, with reference to some one e lse . ‘In every
220 | Duty As a Function of Foreseeability (Socratic Script)

instance, before negligence can be predicated of a given act, back of the act must be sought and
found a duty to the individual complaining, the observance of which would have averted or avoided
the injury.’ [cc] The plaintiff sues in her own right for a wrong personal to her, and not as the vicarious
beneficiary of a breach of duty to another.
A different conclusion will involve us, and swiftly too, in a maze of contradictions. A guard stumbles
over a package which has be en left upon a platform. It seems to be a bundle of newspapers. It turns
out to be a can of dynamite. To the e ye of ordinary vigilance , the bundle is abandone d waste, which
may be kicked or trod on with impunity. Is a passenger at the other end of the platform protected by
the law against the unsuspe cted hazard concealed beneath the waste? If not, is the result to be any
different, so far as the distant passenger is concerned, when the guard stumbles over a valise *343
which a truckman or a porter has left upon the walk? The passenger far away, if the victim of a wrong
at all, has a cause of action, not derivative, but original and primary. His claim to be protected against
invasion of his bodily security is neither greater nor less because the act resulting in the invasion is a
wrong to another far removed.
In this case, the rights that are said to have be en violated, are not e ven of the same order. The man
was not injured in his person nor even put in danger. The purpose of the act, as well as its effect, was
to make his person safe. It there was a wrong to him at all, which may very well be doubted it was a
wrong to a property interest only, the safety of his package.
Out of this wrong to property, which threatened injury to nothing else, there has passe d, we are told,
to the plaintiff by derivation or succession a right of action for the invasion of an interest of another
order, the right to bodily security. The diversity of interests emphasizes the futility of the effort to
build the plaintiff’s right upon the basis of a wrong to someone e lse . The gain is one of emphasis, for a
like result would follow if the interests were the same . Even then, the orbit of the danger as disclosed
to the e ye of reasonable vigilance would be the orbit of the duty. One who jostles one’s neighbor in a
crowd does not invade the rights of others standing at the outer fringe whe n the unintended contact
casts a bomb upon the ground. The wrongdoer as to them is the man who carries the bomb, not the
one who e xplodes it without suspicion of the danger. Life will have to be made over, and human nature
transformed, before prevision so extravagant can be accepted as the norm of conduct, the customary
standard to which behavior must conform.
The argument for the plaintiff is built upon the shifting meanings of such words as ‘wrong’ and
‘wrongful,’ and shares their instability. What the plaintiff must *344 show is ‘a wrong’ to herself; i.e., a
violation of her own right, and not merely a wrong to someone else, nor conduct ‘wrongful’ because
unsocial, but not ‘a wrong’ to anyone. We are told that one who drives at reckless speed through a
crowded city street is guilty of a negligent act and therefore of a wrongful one, irrespective of the
consequences. Negligent the act is, and wrongful in the se nse that it is unsocial, but wrongful and
unsocial in relation to other travelers, only because the e ye of vigilance perceives the risk of damage. If
the same act were to be committed on a speedway or a race course, it would lose its wrongful quality.
The risk reasonably to be perceived defines the duty to be obe yed, and risk imports relation; it is risk
to another or to others within the range of apprehension. [cc]
This does not mean, of course, that one who launches a destructive force is always relieved of liability,
Duty As a Function of Foreseeability (Socratic Script) | 221

if the force, though known to be destructive, pursues an unexpected path. ‘It was not necessary that
the defendant should have had notice of the particular method in which an accident would occur, if
the possibility of an accident was clear to the ordinarily prudent eye.’ [Citations omitted] Some acts,
such as shooting are so imminently dangerous to any one who may come within reach of the missile
however unexpectedly, as to impose a duty of prevision not far from that of an insurer. Even to-day,
and much oftener in earlier stages of the law, one acts sometimes at one’s peril. [cc] Under this head,
it may be, fall certain cases of what is known as transferred intent, an act willfully dangerous to A
resulting by misadventure in injury to B. Talmage v. Smith, 101 Mich. 370, 374 *345 These cases aside,
wrong is defined in terms of the natural or probable, at least when unintentional. Parrot v. Wells-Fargo
Co. (The Nitro-Glycerine Case) 15 Wall. 524, 21 L. Ed. 206. The range of reasonable apprehension is at
times a question for the court, and at times, if varying inferences are possible, a question for the jury.
Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the
parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it
down knowingly and willfully, he would not have threatened the plaintiff’s safety, so far as appearances
could warn him. His conduct would not have involved, even then, an unreasonable probability of
invasion of her bodily security. Liability can be no greater where the act is inadvertent.
Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related,
is surely not a tort, if indeed it is understandable at all. [c] Negligence is not a tort unless it results
in the commission of a wrong, and the commission of a wrong imports the violation of a right, in this
case, we are told, the right to be protected against interference with one’s bodily security. But bodily
security is protected, not against all forms of interference or aggression, but only against some. One
who seeks redress at law does not make out a cause of action by showing without more that there
has been damage to his person. If the harm was not willful, he must show that the act as to him had
possibilities of danger so many and apparent as to entitle him to be protected against the doing of
it though the harm was unintended. [***] Confirmation of this view will be found in the history and
development of the action on the case.
Negligence as a basis of civil liability was unknown to mediaeval law. 8 Holdsworth, History of English
Law, p. 449; Street, Foundations of Legal Liability, vol. 1, *346 pp. 189, 190. For damage to the pe rson,
the sole remedy was trespass, and trespass did not lie in the absence of aggression, and that direct
and personal. [***] Liability for other damage, as where a servant without orders from the master
does or omits something to the damage of another, is a plant of later growth. [cc] When it emerged
out of the legal soil, it was thought of as a variant of trespass, an offshoot of the parent stock. This
appears in the form of action, which was known as trespass on the case. [cc] The victim does not sue
derivatively, or by right of subrogation, to vindicate an interest invaded in the person of another. Thus
to view his cause of action is to ignore the fundame ntal difference be tween tort and crime. Holland,
Jurisprudence (12th Ed.) p. 328. He sues for breach of a duty owing to himself.
The law of causation, remote or proximate, is thus foreign to the case before us. The que stion of
liability is always anterior to the question of the me asure of the consequences that go with liability.
If there is no tort to be redressed, there is no occasion to consider what damage might be recovered
if there were a finding of a tort. We may assume, without deciding, that negligence, not at large or
in the abstract, but in relation to the plaintiff, would entail liability for any and all consequences,
222 | Duty As a Function of Foreseeability (Socratic Script)

however novel or extraordinary [cc] There is room for *347 argument that a distinction is to be
drawn according to the diversity of interests invaded by the act, as where conduct negligent in that it
threatens an insignificant invasion of an interest in property results in an unforeseeable invasion of an
interest of another order, as, e. g., one of bodily security. Perhaps other distinctions may be ne cessary.
We do not go into the question now. The consequences to be followed must first be rooted in a wrong.
The judgment of the Appellate Division and that of the Trial Term should be reversed, and the
complaint dismissed, with costs in all courts.
ANDREWS, J. (dissenting).
Assisting a passenger to board a train, the defendant’s servant negligently knocked a package from
his arms. It fell between the platform and the cars. Of its contents the servant knew and could know
nothing. A violent explosion followed. The concussion broke some scales standing a considerable
distance away. In falling, they injured the plaintiff, an intending passenger.
Upon these facts, may she recover the damages she has suffered in an action brought against the
master? The result we shall reach depends upon our theory as to the nature of negligence. Is it a
relative concept—the breach of some duty owing to a particular person or to particular persons? Or,
where there is an act which unreasonably threatens the safety of others, is the doer liable for all its
proximate consequences, even where the y result in injury to one who would generally be thought to
be outside the radius of danger? This is not a mere dispute as to words. We might not believe that
to the average mind the dropping of the bundle would seem to involve the probability of harm to the
plaintiff standing many feet away whatever might be the case as to the owner or to one so near as to be
likely to be struck by its fall. If, however, we adopt the se cond hypothesis, *348 we have to inquire only
as to the relation between cause and effect. We deal in terms of proximate cause, not of negligence.
Negligence may be defined roughly as an act or omission which unreasonably does or may affect the
rights of others, or which unreasonably fails to protect one’s self from the dangers resulting from
such acts. Here I confine myself to the first branch of the definition. Nor do I comment on the word
‘unreasonable.’ For present purposes it sufficiently describes that average of conduct that society
requires of its members.
There must be both the act or the omission, and the right. It is the act itself, not the intent of the actor,
that is important. [c] In criminal law both the intent and the result are to be considered. Intent again
is material in tort actions, where punitive damages are sought, dependent on actual malice—not one
merely reckless conduct. But here neither insanity nor infancy lessens responsibility. [c] As has been
said, except in cases of contributory negligence, there must be rights which are or may be affected.
Often though injury has occurred, no rights of him who suffers have be en touched. A licensee or
trespasser upon my land has no claim to affirmative care on my part that the land be made safe. [c]
Where a railroad is required to fence its tracks against cattle, no man’s rights are injured should he
wander upon the road because such fence is absent. [c] An unborn child may not demand immunity
from personal harm. [c]
But we are told that ‘there is no negligence unless there is in the particular case a legal duty to take
care, and this duty must be one which is owed to the plaintiff *349 himself and not merely to others.’
Duty As a Function of Foreseeability (Socratic Script) | 223

Salmond Torts (6th Ed.) 24. This I think too narrow a conception. Where there is the unreasonable
act, and some right that may be affected there is negligence whe ther damage does or does not result.
That is immaterial. Should we drive down Broadway at a reckless speed, we are negligent whether
we strike an approaching car or miss it by an inch. The act itself is wrongful. It is a wrong not only
to those who happe n to be within the radius of danger, but to all who might have be en there—a
wrong to the public at large. Such is the language of the street. Such the language of the courts when
speaking of contributory negligence. Such again and again their language in spe aking of the duty of
some defendant and discussing proximate cause in cases where such a discussion is wholly irrelevant
on any other theory. [c] As was said by Mr. Justice Holmes many years ago:
‘The me asure of the defendant’s duty in determining whether a wrong has been committed is
one thing, the me asure of liability when a wrong has been committed is another,’ Spade v. Lynn
& B. R. Co., 172 Mass. 488, 491, (43 L. R. A. 832, 70 Am. St. Rep. 298).
Due care is a duty imposed on each one of us to protect society from unnecessary danger, not to
protect A, B, or C alone. It may well be that there is no such thing as negligence in the abstract. ‘Proof
of negligence in the air, so to speak, will not do.’ In an empty world negligence would not exist. It does
involve a relationship between man and his fellows, but not merely a relationship between man and
those whom he might reasonably expect his act would injure; rather, a relationship between him and
those whom he doe s in fact injure. If his act has a tendency to harm someone, it harms him a mile
away as surely as it does those on the scene.
We now permit children to recover for the negligent killing of the father. It was never prevented on
the the ory that no duty was owing to them. A husband may be compensated for *350 the loss of his
wife’s services. To say that the wrongdoer was negligent as to the husband as well as to the wife is
merely an attempt to fit facts to theory. An insurance company paying a fire loss recovers its payment
of the negligent incendiary. We spe ak of subrogation—of suing in the right of the insured. Behind the
cloud of words is the fact they hide, that the act, wrongful as to the insured, has also injured the
company. Even if it be true that the fault of father, wife, or insured will prevent recovery, it is because
we consider the original negligence, not the proximate cause of the injury. Pollock, Torts (12th Ed.)
463.
In the well-known Polemis Case, [1921] 3 K. B. 560, Scrutton, L. J., said that the dropping of a plank was
negligent, for it might injure ‘workman or cargo or ship.’ Because of either possibility, the owner of the
vessel was to be made good for his loss. The act being wrongful, the doer was liable for its proximate
results. Criticized and explained as this statement may have be en, I think it states the law as it should
be and as it is. [***]
The proposition is this: Everyone owes to the world at large the duty of refraining from those acts that
may unreasonably threaten the safety of others. Such an act occurs. Not only is he wronged to whom
harm, might reasonably be e xpected to result, but he also who is in fact injured, eve n if he be outside
what would generally be thought the danger zone. There ne eds be duty due the one complaining,
but this is not a duty to a particular individual because as to him harm might be e xpected. Harm to
someone be ing the natural result of the act, not only that one alone, but all those in fact injured may
complain. We have ne ver, I think, held otherwise. Indeed in the Di Caprio Case we said that a breach
224 | Duty As a Function of Foreseeability (Socratic Script)

of a *351 general ordinance defining the degree of care to be e xercised in one’s calling is evidence
of negligence as to e veryone. We did not limit this statement to those who might be e xpected to be
exposed to danger. Unreasonable risk being taken, its consequences are not confined to those who
might probably be hurt.
If this be so, we do not have a plaintiff suing by ‘derivation or succession.’ Her action is original and
primary. Her claim is for a breach of duty to herself—not that she is subrogated to any right of action
of the owner of the parcel or of a passenger standing at the scene of the explosion.
The right to recover damages rests on additional considerations. The plaintiff’s rights must be injured,
and this injury must be

caused by the negligence
. We

build a dam, but are negligent as to its

foundations. Breaking, it injures property downstream. We are not liable if all this happe ne d because
of some reason other than the insecure foundation. But, when injuries do result from out unlawful
act, we

are

liable

for the

consequences. It does not matter that they are

unusual, une xpected,

unforeseen, and unforeseeable. But there is one limitation. The damages must be so connected with
the negligence that the latter may be said to be the proximate cause of the former. These two words
have ne ver been given an inclusive definition. What is a cause in a legal sense, still more what is a
proximate cause, depend in each case upon many considerations, as does the existence of negligence
itself. Any philosophical doctrine of causation does not help us. A boy throws a stone into a pond. The
ripples spread. The water level rises. The history of that pond is altered to all eternity. It will be altered
by other causes also. Yet it will be forever the resultant of all causes combined. Each one will have an
influence. How great only omniscience can say. You may speak of a chain, or, if you please, a net. An
analogy is of little aid. *352 Each cause brings about future e vents. Without each the future would not
be the same . Each is proximate in the se nse it is essential. But that is not what we me an by the word.
Nor on the other hand do we mean sole cause. There is no such thing.
Should analogy be thought helpful, however, I prefer that of a stream. The spring, starting on its
journey, is joined by tributary after tributary. The river, reaching the ocean, comes from a hundred
sources. No man may say whence any drop of water is derived. Yet for a time distinction may be
possible. Into the cle ar creek, brown swamp water flows from the left. Later, from the right comes
water stained by its clay bed. The three may remain for a space, sharply divided. But at last inevitably
no trace of separation remains. They are so commingled that all distinction is lost. As we have said,
we cannot trace the e ffect of an act to the end, if end there is. Again, however, we may trace it part of
the way. A murder at Sarajevo may be the ne cessary antecedent to an assassination in London twenty
years hence. An overturned lantern may burn all Chicago. We may follow the fire from the she d to the
last building. We rightly say the fire started by the lantern caused its destruction.
A cause, but not the proximate cause. What we do me an by the word ‘proximate’ is that, because of
convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of
events beyond a certain point. This is not logic. It is practical politics. Take our rule as to fires. Sparks
from my burning haystack set on fire my house and my neighbor’s. I may recover from a negligent
railroad He may not. Yet the wrongful act as directly harmed the one as the othe r. We may regret that
the line was drawn just where it was, but drawn somewhere it had to be. We said the act of the railroad
was not the proximate cause of our neighbor’s fire. Cause it surely was. The words we use d were *353

Duty As a Function of Foreseeability (Socratic Script) | 225

simply indicative of our notions of public policy. Other courts think differently. But somewhere the y
reach the point where they cannot say the stream comes from any one source.
Take the illustration given in an unpublished manuscript by a distinguished and helpful writer on the
law of torts. A chauffeur negligently collides with another car which is filled with dynamite, although
he could not know it. An explosion follows. A, walking on the side walk nearby, is killed. B, sitting in
a window of a building opposite, is cut by flying glass. C, likewise sitting in a window a block away,
is similarly injured. And a further illustration: A nursemaid, ten blocks away, startled by the noise,
involuntarily drops a baby from her arms to the walk. We are told that C may not recover while A may.
As to B it is a question for court or jury. We will all agree that the baby might not. Because, we are
again told, the chauffeur had no reason to believe his conduct involved any risk of injuring either C or
the baby. As to them he was not negligent. But the chauffeur, being negligent in risking the collision,
his belief that the scope of the harm he might do would be limited is immaterial. His act unreasonably
jeopardized the safety of any one who might be affected by it. C’s injury and that of the baby were
directly traceable to the collision. Without that, the injury would not have happened. C had the right to
sit in his office, secure from such dangers. The baby was entitled to use the side walk with reasonable
safety.
The true the ory is, it seems to me, that the injury to C, if in truth he is to be de nie d recovery, and
the injury to the baby, is that their several injuries were not the proximate result of the negligence.
And here not what the chauffeur had reason to believe would be the result of his conduct, but what
the prudent would foresee, may have a be aring—may have some be aring, for the problem *354 of
proximate cause is not to be solved by any one consideration. It is all a question of expediency. There
are no fixed rules to govern our judgment. There are simply matters of which we may take account.
We have in a some what different connection spoken of ‘the stream of events.’ We have asked whether
that stream was deflected—whether it was forced into new and unexpected channels. [***] This is
rather rhetoric than law. There is in truth little to guide us other than common sense.
There are some hints that may help us. The proximate cause, involved as it may be with many other
causes, must be, at the le ast, something without which the e vent would not happen. The court must
ask itself whether there was a natural and continuous sequence be tween cause and effect. Was the
one a substantial factor in producing the other? Was there a direct connection between them, without
too many intervening causes? Is the effect of cause on result not too attenuated? Is the cause likely, in
the usual judgment of mankind, to produce the result? Or, by the e xercise of prudent foresight, could
the result be foreseen? Is the result too remote from the cause, and here we consider remoteness in
time and space. [c] Clearly we must so consider, for the greater the distance either in time or space,
the more surely do other causes intervene to affect the result. When a lantern is overturned, the firing
of a shed is a fairly direct consequence. Many things contribute to the spread of the conflagration—the
force of the wind, the direction and width of streets, the character of intervening structures, other
factors. We draw an uncertain and wavering line, but draw it we must as best we can. Once again, it is
all a question of fair judgment, always *355 keeping in mind the fact that we endeavor to make a rule
in each case that will be practical and in keeping with the general understanding of mankind.
Here another question must be answered. In the case suppose d, it is said, and said correctly, that
the chauffeur is liable for the direct effect of the e xplosion, although he had no reason to suppose it
226 | Duty As a Function of Foreseeability (Socratic Script)

would follow a collision. ‘The fact that the injury occurred in a different manner than that which might
have be en expected does not prevent the chauffeur’s negligence from being in law the cause of the
injury.’ But the natural results of a negligent act—the results which a prudent man would or should
foresee—do have a be aring upon the de cision as to proximate cause. We have said so repeatedly. What
should be foreseen? No human foresight would suggest that a collision itself might injure one a block
away. On the contrary, given an explosion, such a possibility might be reasonably expected. I think the
direct connection, the foresight of which the courts speak, assumes prevision of the e xplosion, for the
immediate results of which, at least, the chauffeur is responsible.
It may be said this is unjust. Why? In fairness he should make good every injury flowing from his
negligence. Not because of tenderness toward him we say he ne ed not answer for all that follows his
wrong. We look back to the catastrophe, the fire kindle d by the spark, or the e xplosion. We trace the
consequences, not indefinitely, but to a certain point. And to aid us in fixing that point we ask what
might ordinarily be expected to follow the fire or the explosion.
This last suggestion is the factor which must dete rmine the case before us. The act upon which
defendant’s liability rests is knocking an apparently harmless package onto the platform. The act was
negligent. For its proximate consequences the defendant is liable. If its contents were broken, to the
owner; if it fell upon and crushed a passenger’s foot, then to him; if it exploded *356 and injured one in
the imme diate vicinity, to him also as to A in the illustration. Mrs. Palsgraf was standing some distance
away. How far cannot be told from the record—apparently 25 or 30 feet, perhaps less. Except for the
explosion, she would not have be en injured. We are told by the appellant in his brief, ‘It cannot be
denied that the e xplosion was the direct cause of the plaintiff’s injuries.’ So it was a substantial factor
in producing the result—there was here a natural and continuous sequence—direct connection. The
only intervening cause was that, instead of blowing her to the ground, the concussion smashed the
weighing machine which in turn fell upon her. There was no remoteness in time, little in space. And
surely, given such an explosion as here, it needed no great foresight to predict that the natural result
would be to injure one on the platform at no greater distance from its scene than was the plaintiff.
Just how no one might be able to predict. Whether by flying fragments, by broken glass, by wreckage
of machines or structures no one could say. But injury in some form was most probable.
Under these circumstances I cannot say as a matter of law that the plaintiff’s injuries were not the
proximate result of the negligence. That is all we have before us. The court refused to so charge. No
request was made to submit the matter to the jury as a question of fact, even would that have be en
proper upon the record before us.
The judgment appealed from should be affirmed, with costs.
Note 1. You know it’s a famous case when there’s a Lego dramatization. You might appreciate this 5:24
minute Lego-figure parody and recreation of the facts and trial of Palsgraf (but beware that it takes
liberties such as including an anachronistic TSA interview and televisual exhibit in the courtroom). It’s
available here (full link: https://www.youtube.com/watch?v=mDEbTudkjhc)
Note 2. Palsgraf may be famous be cause of the oddly vivid facts, the socioe conomic context and
the elevated language and reasoning of the majority and dissenting opinions by Justice Cardozo and
Duty As a Function of Foreseeability (Socratic Script) | 227

Justice Andrews, respectively. These two justices are e xtremely well-respected for their analytic craft,
especially Justice Cardozo, who would go on to become one of the most well-respected justices of the
century (and a renowned expert on tort law). But it was also an important opinion because it featured
a dispute over where in the ne gligence action the scope of the tort was to be defined—at the duty
stage, as a matter of law for the judge, or at the later proximate cause stage, as a question of fact for
the jury. The two justices are both trying to answe r the same normative question: Should the court
hold the defendant liable to this plaintiff? Given that, why might it matter whether a case like Palsgraf
is decided by a judge versus a jury?
Note 3. If “foreseeability” is the driving consideration behind duty (and plays a role in many analyses of
proximate cause), it ought to be a principle that can be conceptualized in terms of tort law’s purposes.
How well does it serve compensation, deterrence, efficiency, fairness and social justice? What sorts of
consequences do you imagine an emphasis on foreseeability could produce in the real world in terms
of parties’ behavior and choices?

Check Your Understanding – Set 19

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=54#h5p-53

Doctrinal Synthesis. Learning in law school is cumulative and reviewing earlier doctrines regularly helps
you both to recall and refine them. The following questions ask you to synthesize learning from earlier
cases you’ve covered. For each one, answer whether the doctrine might be relevant on the facts of
Palsgraf.

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=54#h5p-54

An interactive H5P element has been excluded from this version of the text. You can view it online

228 | Duty As a Function of Foreseeability (Socratic Script)

here:
http://saidtorts.lawbooks.cali.org/?p=54#h5p-55

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=54#h5p-56

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=54#h5p-57

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=54#h5p-58

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=54#h5p-59

Duty As a Function of Foreseeability (Socratic Script) | 229

Duties Determined by Relationship or Undertaking
Harper v. Herman, Supreme Court of Minnesota (1993)
(499 N.W.2d 472)
This case arises upon a reversal by the

court of appeals of summary judgment in favor of the

defendant. The court of appeals held that defendant, the owner and operator of a private boat on Lake
Minnetonka, had a duty to warn plaintiff, a guest on the boat, that water surrounding the boat was too
shallow for diving. We reverse and reinstate judgment in favor of defendant.
The facts are undispute d for the purpose of this appeal. On Sunday, August 9, 1986, Jeffrey Harper
(“Harper”) was one of four guests on Theodor Herman’s (“Herman”) 26–foot boat, sailing on Lake
Minnetonka. Harper was invited on the

boat outing by Cindy Alberg Palmer, another guest on

Herman’s boat. Herman and Harper did not know each other prior to this boat outing. At the time
Herman was 64 years old, and Harper was 20 years old. Herman was an experienced boat owner
having spent hundreds of hours operating boats on Lake Minne tonka similar to the one involved in
this action. As owner of the boat, Herman considered himself to be in charge of the boat and his
passengers. Harper had some experience swimming in lakes and rivers, but had no formal training in
diving.
After a few hours of boating, the group decided to go swimming and, at Herman’s suggestion, went to
Big Island, a popular recreation spot. Herman was familiar with Big Island, and he was aware that the
water remains shallow for a good distance away from its shore. Harper had been to Big Island on one
previous occasion. Herman positioned the boat somewhere be tween 100 to 200 yards from the island
with the bow facing away from the island in an area shallow enough for his gue sts to use the boat
1

ladder to enter the water, but still deep enough so they could swim. The bottom of the lake was not
visible from the *474 boat. After positioning the boat Herman proceeded to set the anchor and lower
the boat’s ladder which was at its stern.
While

Herman was lowering the ladder, Harper asked him if he

was “going in.” When Herman

responded yes, Harper, without warning, stepped onto the side of the middle of the boat and dove
into approximately two or three feet of water. As a result of the dive, Harper struck the bottom of the
lake, severed his spinal cord, and was rendered a C6 quadriplegic.
Harper then brought suit, alleging that Herman owed him a duty of care to warn him that the water
was too shallow for diving. On October 23, 1991, the trial court granted Herman’s motion for summary
judgment, ruling that the law does not impose such a duty. In reversing the trial court, the court
of appeals concluded that Herman voluntarily assumed a duty to exercise reasonable care when
he allowed Harper onto his boat, and that the duty of care include d warning Harper not to dive

1. Herman disputes that the boat was this far from shore, but for purposes of this appeal stipulates to Harper’s allegation.
230 | Duty As a Function of Foreseeability (Socratic Script)

because he kne w that the water was “dangerously shallow.” Harper v. Herman, 487 N.W.2d 908, 910
(Minn.App.1992). [***]
Harper alleges that Herman owed him a duty to warn of the shallowness of the water because
he was an inexperienced swimmer and diver, whereas Herman was a veteran boater. Under those
circumstances, Harper argues, Herman should have realized that Harper needed his protection.
We have previously stated that an affirmative duty to act only arises when a special relationship
exists between the parties. “The fact that an actor realizes or should realize that action on his part is
necessary for another’s aid or protection does not of itself impose upon him a duty to take such action
* * * unless a special relationship exists * * * between the actor and the other which gives the other
the right to protection.” [c] Accepting, arguendo, that Herman should have realized that Harper needed
protection, Harper must still prove that a special relationship existed between them that placed an
affirmative duty to act on the part of Herman.
Harper argues that a special relationship requiring Herman to act for his protection was created when
Herman, as a social host, allowed an inexperienced diver on his boat. Generally, a special relationship
giving rise to a duty to warn is only found on the part of common carriers, innkeepers, possessors
of land who hold it open to the public, and persons who have custody of another person under
circumstances in which that other person is deprived of normal opportunities of self-protection.
Restatement (Second) of Torts § 314A (1965). Under this rule, a special relationship could be found to
exist between the parties only if Herman had custody of Harper under circumstances in which Harper
2

was deprived of normal opportunities to protect himself. These elements are not present here.
The record before this court does not establish that Harper was either particularly vulnerable or
that he lacked the ability to protect himself. Further, the record does not establish that Herman held
considerable power over Harper’s welfare, or that Herman was receiving a financial gain by hosting
Harper on his boat. Finally, there is nothing in the record which would suggest that Harper expected
any protection *475 from Herman; indeed, no such allegation has been made.
The court of appeals found that Herman owed Harper a duty to warn him of the shallowness of
the water because Herman knew that it was “dangerously shallow.” We have previously stated that
“[a]ctual knowledge of a dangerous condition tends to impose a special duty to do something about
that condition.” [***] However, superior knowledge of a dangerous condition by itself, in the absence
of a duty to provide protection, is insufficient to establish liability in negligence. Thus, Herman’s
knowledge that the water was “dangerously shallow” without more does not create liability. [***]

2. Prosser describes a circumstance in which one party would be liable in negligence because another party was deprived
of normal opportunities for self-protection as occurring when the plaintiff is typically in some respect particularly
vulnerable and dependent upon the defendant who, correspondingly, holds considerable power over the plaintiff’s
welfare. In addition, such relations have often involved some existing or potential economic advantage to the defendant.
Fairness in such cases thus may require the defendant to use his power to help the plaintiff, based upon the plaintiff’s
expectation of protection, which itself may be based upon the defendant’s expectation of financial gain. W. Page Keeton
et al., Prosser and Keeton on the Laws of Torts § 56, at 374 (5th ed. 1984).
Duty As a Function of Foreseeability (Socratic Script) | 231

Harper was not deprived of opportunities to protect himself, and Herman was not expected to provide
protection.
“There are many dangers, such as those of fire and water, * * * which under ordinary conditions
may reasonably be e xpected to be fully understood and appreciated by any child * * *.” Restatement
(Second) of Torts § 339 cmt. j (1965). If a child is expected to understand the inherent dangers of
water, so should a 20–year–old adult. Harper had no reasonable e xpectation to look to Herman for
protection, and we hold that Herman had no duty to warn Harper that the water was shallow.
Reversed and judgment in favor of defendant reinstated.
Note 1. Does the court’s ruling rest primarily on the plaintiff’s expectations and capacity or the
defendant’s obligations? To what extent can those be uncoupled? Should it matter whether the boat’s
owner invited the guest directly (as he did not, in this case)?
Note 2. What facts would you add if you were se eking to convert this fact pattern into one in which
Herman did owe Harper a duty on the basis of a special relationship?

Sidwell v. McVay Supreme Court of Oklahoma (1955)
(282 P.2d 756)
Tony Wayne Sidwell, a sixteen year old boy, as plaintiff brought this action by and through his mother
and next friend, Ava Jane Sidwell, against W. F. Peterson III and Mickey McVay, two other boys
about the same age, and against Ralph H. McVay and Myra E. McVay, the parents of the latter, all as
defendants to recover damages for personal injuries resulting from a fireworks explosion. The parties
will be referred to as they appeared in the trial court.
The question here presented is whether or not the trial court was correct in sustaining demurrers
to plaintiff’s evidence and dismissing the action. On the morning of July 4, 1952 at about 9:00 o’clock,
the *758 defendant Mickey McVay drove by the home of plaintiff in the McVay family automobile. The
two boys then drove to the McVay home where the y got with the Peterson boy. For several years
the three had be en close school chums. They then drove to a fireworks retail sales stand where the y
pooled their money and bought a gross of firecrackers known as ‘cherry bombs.’ They returned to the
McVay home where, in the breakfast room thereof and with kitchen knives, they opened about sixty
or seventy of the firecrackers and removed the gunpowder totaling about one half teacupful. From
the garage or she d, they got a short piece of metal pipe with a cap screwed on one end. They used a
hammer and punch to make a small hole in the middle of the pipe, in which to insert the fuse. They
poured the powder into the pipe and stuffed pieces of paper in the open end. Unable to locate another
cap for the pipe , the plaintiff laid the pipe on the concrete floor or driveway of the garage and began
trying to beat the open end of the pipe together with a hammer. The other two boys were frightened
and moved back to a safe distance. After plaintiff had hammered on the pipe for several minutes, the
contraption exploded blowing off his left hand.

232 | Duty As a Function of Foreseeability (Socratic Script)

During the time the boys were removing the powder from the ‘cherry bombs,’ both Mr. and Mrs. McVay
came through the kitchen several times, the latter admonishing them about making a mess in the
breakfast room. While the plaintiff was hammering on the pipe, Mr. McVay came out of the house and
got into his car. He noticed what the boys were doing and told them to get back away from the she d or
they would burn it up. About a year previously the boys had made two similar bombs from aluminum
pipe and Mr. McVay had driven them to a lake ne ar the city limits to shoot them. At about that same
previous time, the plaintiff and his younger brother and possibly the McVay boy had constructed a
similar bomb and had exploded it outside the city limits.
[***] [On appeal, plaintiff’s] position is:
‘It was the duty of the defendants as the owners and operators of the premises to either take the
dangerous ingredients away from the plaintiff, or to require him to get off of the premises before going
ahead with the assembly of their various materials into the dangerous product, or, to warn plaintiff of
the danger connected with what he was doing.’
With this contention, we do not agree. [***] Here the plaintiff was not attracted to the McVay home
nor was he injured by any condition thereon. He was injured as a result of his own acts upon the
dangerous instrumentality, the gunpowder, which the plaintiff himself had assisted in bringing onto
the premises. The plaintiff was a sixteen year old boy with an alert mind and a past experience with the
dangerous substance. The attractive nuisance doctrine had no application. The following statement in
the case of Keck v. Woodring, 201 Okl. 665 is particularly applicable here:
‘Whether the child was of an age and capacity to understand and avoid danger is usually a
question for the jury, but it may be stated as a settled rule in this state that after the age of
fourteen all minors are prima facie presumed to be capable of the e xercise of judgment and
discretion. Plaintiff being over the age of fourteen, and there being no evidence of lack of
capacity, but, on the contrary, there being evidence that plaintiff was of advanced intelligence,
the trial court should have held as a matter of law that the rule of attractive nuisance could
not be invoked.’
Citation of authority is unnecessary to support the rule that in order for *759 plaintiff to recover in
an action founded upon negligence, proof must be made of the essential elements; that defendant
had duty to protect injured person from injury; that defendant failed to perform that duty, and that
such failure was proximate cause of injury. The lack of proof of any one of these elements is fatal to
the action. In the case before us there is a complete absence of proof of any duty to plaintiff owed by
any of the defendants. Even though the me ans had been at hand to stop plaintiff from hammering the
pipe, none of the defendants was obligated to do so.
‘As a general rule, the law imposes no duty on one person actively to assist in the preservation
of the person or property of another from injury, even though the me ans by which harm
can be averted are in his posse ssion. The law does not undertake to make men render active
service to their neighbors at all times when a good or brave man would do so.
‘Those duties which are dictated merely by good morals, or by humane considerations, are not
within the domain of the law.’ 38 Am.Jur. 658, Negligence sec. 16.
Duty As a Function of Foreseeability (Socratic Script) | 233

The last quote d rule is also applicable to the minor de fendants, McVay and Peterson. None of the
evidence tended to establish a duty due from them to plaintiff nor any breach of duty. There was
testimony that these latter defendants, as they were se eking a place of safety, tried to get plaintiff to
stop hammering on the bomb. Since, however, the plaintiff denied it and the matter was presented on
demurrer, there was no proof that they sanctioned or encouraged the dangerous acts.
Plaintiff’s evidence wholly failed to establish any of the essentials above enumerated entitling him to
recover. [***] Therefore, the trial court committed no error in sustaining the se veral demurrers to the
evidence of plaintiff.
The judgment is affirmed.
Note 1. How important do you think the boys’ age and gender were to this case? Do you think
contemporary parenting models might prompt different analysis from a court today?
Note 2. No Duty to Rescue. Sidwell reinforces the general proposition that there is no duty to rescue
in American tort law. That is, there is no duty to take affirmative steps to help or “rescue” another
who faces a risk or harms you did not create through your negligence or contribute to increasing.
“rescue” does not mean only traditional rescues such as helping someone out of a difficult spot in
the moment when it is happening, but more broadly, the undertaking of steps to assist or warn the
injured or vulnerable, more generally. Tort law does not require taking action to help someone unless
you have a spe cial relationship or contract or fall into one of the e xceptions or categories in which
specific duties are articulated. Even then, expect to see rulings of “no duty” in many cases where some
duty might be owed to some pe ople, at some times. Consider that in Harper the victim was a guest
on the defendant’s boat but that social relationship alone and the boat’s ownership did not give rise to
a duty to warn; in Sidwell, although the boys were friends and all involved in experimenting with the
explosives to some extent, their joint efforts were not enough to give rise to a duty to interfere with
or impede the plaintiff from his own decisions to hammer the pipe bomb.
Note 3. Policy Considerations Underpinning the No Duty to Rescue Rule. “With a few exceptions,
the general rule in American tort law is that bystande rs will not be liable to a victim for their failure
to affirmatively aid. There is, in other words, no general duty to reasonably rescue in American law.
This feature of American tort law differs markedly from the legal treatment of the same issue in
other parts of the world where legal obligations to affirmatively aid another in peril are common. It
stands also in striking contrast to most conventional views of common decency and morality. [But]
a full understanding of the no-duty-to-rescue doctrine begins with an appreciation that it is less an
affirmative assertion of preferred behavior and outcomes than a tenet of tort law not to extend the
usual regulatory pressures of negligence into this particular nook of human judgment.” Marin Roger
Scordato, Understanding the Absence of A Duty to Reasonably Rescue in American Tort Law, 82 Tul. L.
Rev. 1447, 1452 (2008)
Scordato argues that it would impose considerable costs on society to impose a general duty to
rescue, and he contrasts such a general duty to rescue with a more limited duty that could be
imposed on those with expertise in related areas. Others have e xplored the philosophical implications
of retaining the no-duty rule or abandoning it, and there have be en spirited defenses of it as a
234 | Duty As a Function of Foreseeability (Socratic Script)

mechanism that reflects tort law’s concern with efficiency. See William M. Landes & Richard A.
Posner, Salvors, Finders, Good Samaritans, and Other Rescuers: An Economic Study of Law and
Altruism, 7 J. Legal Stud. 83, 119-27 (1978) (arguing, in part, that would-be rescuers will avoid morally
worthy attempts to rescue if liability for doing or not doing so exists). Still others have argued the
opposite, advocating in favor of a liability rule. See Richard L. Hasen, The Efficient Duty to Rescue, 15
Int’l Rev. L. & Econ. 141, 147 (1995).
Is this an area of law in which making a choice base d on efficiency seems advisable to you? Why or
why not? What philosophical perspective do you think the law should adopt?

Farwell v. Keaton, Supreme Court of Michigan (1976)
(396 Mich. 281)
There is ample e vidence to support the jury determination that David Siegrist failed to exercise
reasonable care after voluntarily coming to the aid of Richard Farwell and that his negligence was the
proximate cause of Farwell’s death. We are also of the opinion that Siegrist, who was with Farwell the
evening he was fatally injured and, as the jury found, knew or should have known of his peril, had an
3

affirmative duty to come to Farwell’s aid.

On the e vening of August 26, 1966, Siegrist and Farwell drove to a trailer rental lot to return an
automobile which Siegrist had borrowed from a friend who worked there. While waiting for the friend
to finish work, Siegrist and Farwell consumed some be er. Two girls walked by the entrance to the lot.
Siegrist and Farwell attempted to engage them in conversation; they left Farwell’s car and followed the
girls to a drivein restaurant down the street. The girls complained to their friends in the restaurant
that they were being followed. Six boys chased Siegrist and Farwell back to the lot. Siegrist escaped
unharmed, but Farwell was severely beaten. Siegrist found Farwell underneath his automobile in the
lot. Ice was applied to Farwell’s head. Siegrist then drove Farwell around for approximately two hours,
stopping at a number of drive-in restaurants. Farwell went to sleep in the back seat of his car. Around
midnight Siegrist drove the car to the home of Farwell’s grandparents, parked it in the driveway,
unsuccessfully attempted to rouse Farwell, and left. Farwell’s grandparents discovered him in the car
the next morning and took him to the hospital. He died three days later of an epidural hematoma.
At trial, plaintiff contended that had Siegrist taken Farwell to the hospital, or had he notified someone
of Farwell’s condition and whereabouts, Farwell would not have die d. A neurosurgeon testified that if
a person in Farwell’s condition is taken to a doctor before, or within half an hour after, consciousness
is lost, there is an 85 to 88 per cent chance of survival. Plaintiff testified that Siegrist told him that he
knew Farwell was badly injured and that he should have done something.

3. The trial judge instructed the jury to determine whether Siegrist had voluntarily undertaken to render aid and, if he had,
whether he acted reasonably in discharging that duty. Whether Siegrist be charged with the duty of a voluntary rescuer
or the duty of a companion, the standard of care—whether he acted reasonably under all the circumstances—is the same
and the instruction given was adequate.
Duty As a Function of Foreseeability (Socratic Script) | 235

The jury returned a verdict for plaintiff and awarded $15,000 in damages. The Court of Appeals
reversed, finding that Siegrist had not assumed the duty of obtaining aid for Farwell and that he
neither knew nor should have known of the need for medical treatment.
Two separate, but interrelated questions are presented:
A. Whether the existence of a duty in a particular case is always a matter of law to be de termined
solely by the Court?
B. Whether, on the facts of this case, the trial judge should have rule d, as a matter of law, that Siegrist
owed no duty to Farwell?
‘A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and
effect, to conform to a particular standard of conduct toward another.’ Prosser, Torts (4th ed.), s 53, p.
324. The e xistence of a duty is ordinarily a question of law. However, there are factual circumstances
4

which give rise to a duty. The e xistence of those facts must be de termined by a jury. In Bonin v.
Gralewicz, 378 Mich. 521, 526—527 (1966), this Court reversed a directed verdict of no cause of action
where the trial court had determined as a matter of law that the proofs were insufficient to establish
a duty of care:
‘Usually, in negligence cases, whether a duty is owed by the defendant to the plaintiff does
not require resolution of fact issues. However, in some cases, as in this one, fact issues arise.
When they do, they must be submitted to the jury, our traditional finders of fact, for ultimate
resolution, and they must be accompanied by an appropriate conditional instruction regarding
defendant’s duty, conditioned upon the jury’s resolution of the fact dispute.’
This same rule was stated more recently in Davis v. Thornton, 384 Mich. 138, 142, (1970). ‘The trial judge
in this case de termined the defendant owed the plaintiff no duty. We believe this conclusion could
properly be made only by a jury.’
Without regard to whether there is a general duty to aid a person in distress, there is a cle arly
recognized legal duty of every person to avoid any affirmative acts which may make a situation worse.
‘(I)f the defendant does attempt to aid him, and takes charge and control of the situation, he is
regarded as entering voluntarily into a relation which is attended with responsibility. Such a defendant
will the n be liable for a failure to use reasonable care for the protection of the plaintiff’s interests.’ [***]
In a case such as the one at bar, the jury must determine, after considering all the evidence, whether
the defendant attempted to aid the victim. If he did, a duty arose which required defendant to act as a
reasonable person.
‘Before any duty, or any standard of conduct may be se t, there must first be proof of facts which give
rise to it,’ Prosser, Supra, s 37, p. 205. Whether those facts have be en proved is a question for the jury.

4. Of course, merely labeling a question as one of ‘law’ or ‘fact’ does not solve the dilemma. ‘No two terms of legal science
have rendered better service than ‘law’ and ‘fact’ * * *. They readily accommodate themselves to any meaning we desire
to give them * * *. What judge has not found refuge in them? The man who could succeed in defining them would be a
public enemy.’ Leon Green, Judge and Jury, p. 270.
236 | Duty As a Function of Foreseeability (Socratic Script)

[***] There was ample e vidence to show that Siegrist breached a legal duty owed Farwell. Siegrist
knew that Farwell had been in a fight, and he attempted to believe Farwell’s pain by applying an ice
pack to his head. While Farwell and Siegrist were riding around, Farwell crawled into the back se at and
laid down. The testimony showed that Siegrist attempted to rouse Farwell after driving him home but
was unable to do so.
In addition, Farwell’s father testified to admissions made to him by Siegrist:
‘Q. Witness, just before the jury was excused, I asked whether you had any conversation with Mr.
Siegrist after this event occurred. You answered, ‘Yes, the day *289 after in the living room of Mrs.
Grenier’s (the de ceased’s mother) home.’ Then, the jury was excused, and we made a spe cial record,
and now I would like to ask you some questions that I asked and that you answered out of the presence
of the jury.
‘A. Yes.
‘Q. What did Mr. Siegrist say, how did the conversation go?
‘A. I asked him why he left Ricky (the deceased) in the driveway of his grandfather’s home.
‘Q. What did he say?
‘A. He said ‘Ricky was hurt bad, I was scared.’ I said, ‘Why didn’t you tell somebody, tell his grandparents”’?
He said, ‘I know I should have, I don’t know.” (Emphasis added).
The question at trial came down to whether Siegrist acted reasonably under all the circumstances.
[***] The jury in this case found that Siegrist did not act reasonably, and that his negligence was the
proximate cause of Farwell’s death.
[***] Siegrist contends that he is not liable for failure to obtain me dical assistance for Farwell because
5

he had no duty to do so. Courts have be en slow to recognize a duty to render aid to a person in peril.

Where such a duty has been found, it has been predicated upon the e xistence of a special relationship
6

between the parties; in such a case, if defendant knew or should have known of the other person’s
peril, [fn] he *291 is required to render reasonable care under all the circumstances. [fn]
[***] The Sixth Circuit Court of Appeals, in Hutchinson v. Dickie, 162 F.2d 103, 106 (C.A. 6, 1947), said
that a host had an affirmative duty to attempt to rescue a guest who had fallen off his yacht. The

5. ‘* * * The law has persistently refused to recognize the moral obligation of common decency and common humanity, to
come to the aid of another human being who is in danger * * *. The remedy in such cases is left to the ‘higher law’ and
the ‘voice of conscience,’ which, in a wicked world, would seem to be singularly ineffective either to prevent the harm or
to compensate the victim.’ Prosser, Torts (4th ed.), s 56, pp. 340—341. ‘At the other end of the spectrum are cases where
the peril to the plaintiff has come from a source in no way connected with defendant’s conduct or enterprises or
undertakings, past or present, but where the defendant has it in his power by taking some reasonable precaution to
remove the peril. Here the law has traditionally found no duty, however reprehensible and unreasonable the defendant’s
failure to take the precaution may be. * * * There is no legal obligation to be a Good Samaritan.’ Harper & James, The
Law of Torts, s 18.6, p. 1046.
6. Carriers have a duty to aid passengers who are known to be in peril [cc] Maritime law has imposed a duty upon masters
to rescue crewmen who fall overboard. [cc]
Duty As a Function of Foreseeability (Socratic Script) | 237

host controlled the only instrumentality of rescue. The Court declared that to ask of the host anything
less than that he attempt to rescue his guest would be ‘so shocking to humanitarian considerations
and the commonly accepted code of social conduct that the courts in similar situations have had no
difficulty in pronouncing it to be a legal obligation.’
Farwell and Siegrist were companions on a social venture. Implicit in such a common undertaking
is the understanding that one will render assistance to the othe r whe n he is in pe ril if he can do so
without endangering himself. Siegrist knew or should have known when he left Farwell, who was badly
beaten and unconscious, in the back se at of his car that no one would find him before morning. Under
these circumstances, to say that Siegrist had no duty to obtain medical assistance or at least to notify
someone of Farwell’s condition and whereabouts would be ‘shocking to humanitarian considerations’
and fly in the face *292 of ‘the commonly accepted code of social conduct.’ [fn] (C)ourts will find a duty
where, in general, reasonable men would recognize it and agree that it exists. [fn]
Farwell and Siegrist were

companions engaged in a common undertaking; there

was a special

relationship between the parties. Because Siegrist knew or should have known of the peril Farwell was
in and could render assistance without endangering himself he had an affirmative duty to come to
Farwell’s aid.
The Court of Appeals is reversed and the verdict of the jury reinstated.
FITZGERALD, Justice (dissenting).
The unfortunate de ath of Richard Farwell prompted this wrongful death action brought by his father
against defendant, David Siegrist, a friend who had accompanied Farwell during the evening in which
the de cedent received injuries which ultimately cause his de ath three days later. The question before
us is whether the defendant, considering his relationship with the de cedent and the activity they
jointly experienced on the e vening of August 26—27, 1966, by his conduct voluntarily or otherwise
assumed, or should have assume d, the duty of rendering medical or other assistance to the de ceased.
We find that defendant had no obligation to assume, nor did he assume, such a duty.
The facts of the case are accurately set forth in the Court of Appeals opinion.
‘Factually, it appears that, on August 26, 1966, Richard Murray Farwell, deceased eighteen-year-old
son of the plaintiff, visited the home of his friend, David Siegrist, a sixteen-year-old; that evening they
drove to a trailer rental lot, where Siegrist was returning an automobile he had borrowed from a friend
who was employed by the rental agency.
‘Siegrist and Farwell planned to wait in the car until the friend had finished work and then ‘drive
around, ‘stopping at various restaurants and drive-ins. While the y were waiting, Seigrist estimated
that they consumed ‘four or five’ beers each. Shortly before nine o’clock p.m., two teenage girls walked
past the car. After an unsuccessful attempt to engage them in conversation, Farwell left the car and
followed the girls; Siegrist got out of the car and followed Farwell.
‘When the girls reached a restaurant a short distance down the street, they apparently complained
to those present that they were being followed. Defendants Ingland, Brock, Donald Keaton, Daniel
238 | Duty As a Function of Foreseeability (Socratic Script)

Keaton, and at least two others in the restaurant began to chase Farwell and Siegrist, both of whom
ran back to the trailer lot. Siegrist escaped by ducking into the trailer rental office, where he requested
those inside to assist Farwell. They stepped out of the office and were confronted by the group which
had been chasing Siegrist and Farwell. The two groups faced each other, but no violence ensued, and
the two groups scattered.
‘It was then discovered for the first time that Farwell had been caught and beaten by those who had
been pursuing him and Siegrist; Farwell was found underneath his automobile in the lot.
‘Farwell was taken to the trailer rental office, where Siegrist gave him a plastic bag full of ice for his
injuries. Shortly thereafter, Farwell and Siegrist left the rental office and, be tween ten o’clock p.m.
and midnight, they visited four different drive-in restaurants. While en route from the third to the
fourth restaurant, Farwell stated that he wanted to lie down, climbed into the back se at, and went to
sleep. Around midnight, Siegrist drove the car to the home of Farwell’s grandparents, parked it in the
driveway, and attempted to rouse Farwell. When the latter merely made a sound as ‘if in a de ep sleep’,
Siegrist left with a friend who had followed him to the grandparents’ house. The next morning, Farwell
was found by his grandparents, apparently taken to a hospital, and died of an epidural hematoma.
‘At the close of plaintiff’s proofs, defendant Siegrist moved for a directed verdict on the grounds that
he had no duty to obtain medical assistance for Farwell as a matter of law. In the alternative, the
motion was based upon the proposition that plaintiff failed to establish that any conduct on the part
of Siegrist proximately caused Farwell’s death. The motion was denied.’[c]
Following the jury verdict of $15,000 in favor of the plaintiff, defendant, arguing that the verdict was
inconsistent with the weight of the e vidence, moved for and was denied a judgment notwithstanding
the verdict. The de cision of the trial court was reversed by the Court of Appeals which found that the
defendant never assumed, voluntarily or otherwise, the duty of obtaining medical assistance for the
deceased. The Court stated that the facts in no way indicated that defendant knew, or should have
known, that immediate me dical attention was required. Consequently, as a matter of law the Court
determined that defendant was under no duty to obtain medical treatment for the decedent.
Plaintiff argues that once having voluntarily undertaken the duty of caring for decedent, defendant
could not discontinue such assistance if, in so doing, he le ft the de cedent in a worse position than
when such duty was assumed. Defendant’s knowledge of the seriousness of decedent’s injury and
the failure to advise de cedent’s grandparents, the close pe rsonal relationship that existed between
defendant and the

de cedent, and the

supposition that the

de cedent relied upon defendant for

assistance le ads plaintiff to conclude that defendant did not act ‘with the reasonable prudence and
care of a reasonable man in the same or like circumstances’. Defendant’s position is that there was
no volunteered assumption of duty to care for the safety of the de cedent. He argues that the facts
within his knowledge on the e vening of August 26, 1966, and the e vidence introduced at trial failed to
establish that defendant should have se en that Richard Farwell had suffered a potentially fatal injury
requiring immediate attention.
Defendant did not voluntarily assume

the

duty of caring for the

de cedent’s safety. Nor did the

circumstances which existed on the e vening of August 26, 1966, impose such a duty. Testimony
Duty As a Function of Foreseeability (Socratic Script) | 239

revealed that only a qualified physician would have reason to suspect that Farwell had suffered an
injury which required immediate me dical attention. The de cedent never complained of pain and, in
fact, had expressed a desire to retaliate against his attackers. Defendant’s inability to arouse the
decedent upon arriving at his grandparents’ home does not permit us to infer, as does plaintiff, that
7

defendant knew or should have known that the de ceased was seriously injured. While it might have
been more prudent for the defendant to insure that the de cedent was safely in the house prior to
leaving, we cannot say that defendant acted unreasonably in permitting Farwell to spend the night
8

asleep in the back seat of his car.
The close relationship between defendant and the de cedent is said to establish a legal duty upon
defendant to obtain assistance for the de cedent. No authority is cited for this proposition other than
the public policy observation that the interest of society would be benefited if its members were
required to assist one another. This is not the appropriate case to establish a standard of conduct
requiring one to legally assume the duty of insuring [sic] the safety of another. Recognizing that legal
9

commentaries have e xpressed moral outrage at those de cisions which permit one to refuse aid to
another whose life may be in peril, we cannot say that, considering the relationship between these
two parties and the existing circumstances, defendant acted in an unreasonable manner.

10

Plaintiff believes that a legal duty to aid others should exist where such assistance greatly benefits
society and only a reasonable burden is imposed upon those in a position to help. He contends
further that the de termination of the e xistence of a duty must rest with the jury where questions of
foreseeability and the relationship of the parties are primary considerations.
It is clear that defendant’s nonfeasance, or the ‘passive inaction or a failure to take steps to protect
11

(the de cedent) from harm’ is urged as being the proximate cause of Farwell’s death. We must reject
plaintiff’s proposition which elevates a moral obligation to the le vel of a legal duty where, as here,
the facts within defendant’s knowledge in no way indicated that immediate me dical attention was

7. It is at this point—plaintiff’s unsuccessful attempt to arouse the decedent in the driveway—that counsel, during oral
argument, believes that defendant volunteered to aid the decedent. Yet no affirmative act by defendant indicated that he
assumed the responsibility of rendering assistance to the decedent. Consequently, there could be no Discontinuance of
aid or protection which left decedent in a worse position than when the alleged ‘volunteering’ occurred. This would
make operative the concession of plaintiff that where no duty is owed, the refusal to act cannot form the basis for an
action in negligence.
8. Defendant had no way of knowing that it was the severity of the head injury suffered by the decedent which caused him
to crawl in the back seat and apparently fall asleep. The altercation combined with the consumption of several beers
could easily permit defendant to conclude that decedent was simply weary and desired to rest.
9. The most notable of which include: Osterlind v. Hill, 263 Mass. 73, 160 N.E. 301, 56 A.L.R. 1123 (1928) [cc].
10. Were a special relationship to be the basis of imposing a legal duty upon one to insure the safety of another, it would
most probably take the form of ‘co-adventurers’ who embark upon a hazardous undertaking with the understanding
that each is mutually dependent upon the other for his own safety. There is no evidence to support plaintiff’s position
that decedent relied upon defendant to provide any assistance whatsoever. A situation where two persons are involved
in an altercation provoked by the party ultimately injured, the extent of which was unknown to the other, whose
subsequent conduct included drinking beer and a desire to retaliate against his attackers would not fall within this
category.
11. Prosser, Torts (4th ed.), s 56, pp. 338—339.
240 | Duty As a Function of Foreseeability (Socratic Script)

necessary and the relationship between the parties imposes no affirmative duty to render assistance.
See Steckman v. Silver Moon, Inc., 77 S.D. 206, 90 N.W.2d 170, 64 A.L.R.2d 1171 (1958). The posture of
this case does not permit us to create a legal duty upon one to render assistance to another injured or
imperiled party where the initial injury was not caused by the pe rson upon whom the duty is sought
to be imposed.
The relationship of the parties and the question of foreseeability does not require that the jury, rather
than the court, determine whether a legal duty exists. We are in agreement with the general principle
advanced by plaintiff that the question of negligence is one of law for the court only when the facts
12

are such that all reasonable men must draw the same conclusion. However, this principle be comes
operative only after the court establishes *298 that a legal duty is owed by one party to another.
Prosser’s analysis of the role of the court and jury on questions of legal duty, recently quoted in
Moning v. Alfono, Mich. (1975), bears repeating:
‘The e xistence of a duty [***] is entirely a question of law, to be de termined by reference to
the body of statutes, rules, principles and precedents which make up the law; and it must be
determined only by the court. * * * A decision by the court that, upon any version of the facts,
there is no duty, must necessarily result in judgment for the defendant,’ Prosser, Torts (4th ed.),
s 37, p. 206.
Michigan recognizes that the question of duty is to be resolved by the court rather than the jury.
[c] The Court of Appeals properly decided as a matter of law that defendant owed no duty to the
deceased.
We would affirm.
Note 1. Why do you think the dissent goes to the trouble of revisiting and re-narrating the facts?
Note 2. Wingman Liability. This case has come to be cited for the creation of something called
“wingman liability”—you owe a duty to your co-adventurer or “wingman” for the e vening, even when
you generally do not owe a duty of care to your fellow travelers in the world. It goes beyond simply
owing a duty of care for your friends, very generally; instead, it seems to impose liability on you
for harms that befall your companion for that evening, if you were in a position to curb, or prevent
those harms. What does that rule do to life on many residential college campuses? Let me ask this
another way; what would the rule do to life on such college campuses if legal rules were things that
meaningfully shaped the conduct of actors in that age group (whether rules do or don’t is an open
question, but assume for the moment that students knew about it)… would it change anything, in your
view?
Note 3. Duty as Relational vs Duty as Act-Centered. Duty is often considered categorically, in terms
of classes of actors or entities who owe duties to other classes of actors or entities. But in some cases,
courts find particularized duties to given individuals. Should a therapist aware of a specific deadly

12. McCullough v. Ward Trucking Co., 368 Mich. 108, 117 N.W.2d 167 (1962); Barnbee v. Spence Brothers, 367 Mich. 46, 116
N.W.2d 49 (1962).
Duty As a Function of Foreseeability (Socratic Script) | 241

threat by their client to a third party outside their care be found to owe a duty to that threatened
individual? (See supra, Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334, 340 (Cal. 1976). (yes) Should
an adulterer aware of a sexually transmitted disease be found liable to the spouse of his lover to refrain
from transmitting it to him? (Mussivand v. David, 544 N.E.2d 265, 270 (Ohio 1989) (yes). If foreseeability
is the rationale behind both of these instances, should it matter how the court crafts its decision
and how broad a duty it defines? In Tarasoff, the court created a broad duty on any psychologists
or relevant social workers to all foreseeable nonpatients at risk of credible attack by a patient. In
Mussivand by contrast, the court found a specific duty ran between the parties but did not articulate
a broader class. How far should foreseeability go in establishing duty and how granular should courts
get? Decision by a judge can enable a broadly defined scope of foreseeability whereas determination
by a jury at the proximate cause stage requires case-sensitive de cisionmaking that will necessarily be
narrower. While the study of proximate cause is still ahe ad of you, it is important to begin to see the
significance of defining the scope of tort law and allocating decisional authority to the judge (to decide
it as a function of duty) or the jury (to decide it as a function of proximate cause).
One critique of the notion of duty as relational (associated with Cardozo’s opinion) argues that the
relational theory does not align with how people act, which is better captured in an act-centered view
(associated with Andrews’ dissent):
In most circumstances, one does not act toward others at all. If one considers doing an
act–driving a motorcycle, going for a jog, shooting a gun, or even having sex–one typically
considers only whether the act might create a risk generally. If so, then one feels an obligation
to take care in doing the act. Of course, once one is motivated by a sense of obligation, one
might then consider the number, proximity, and vulnerability of others in determining what
constraints on an activity might be required. This second step in one’s thinking, however, is
an analysis of reasonableness–a matter for breach, not duty. Obligation-based duty reasoning
seeks the internal—albeit objective—perspective of a person in the defendant’s position at the
time of acting. …[W]e think that obligations to act reasonably are most accurately described as
act centered and nonrelational. … Returning to the facts of Mussivand, it would seem callous
and strange to say that one owes an obligation to avoid infecting one’s sexual partner [under a
relational view of duty narrowed as under Mussivand], but no obligation to avoid spurring the
infection of an entire community [under an act-centered nonrelational approach to duty].
W. Jonathan Cardi & Michael D. Green, Duty Wars, 81 S. Cal. L. Rev. 671, 720 (2008) (citations omitted
and emphasis added).
Which seems to you the be tter approach, at this point? Does your answer depend on who makes
the de termination, judge or jury? To what extent does duty inevitably begin to entail discussions of
breach of that duty and inquiries into the defendant’s conduct? How does this inquiry change—and
how should it change—over time?

242 | Duty As a Function of Foreseeability (Socratic Script)

Exceptions to the No Duty to Rescue Rule
The Restatement sets out clear exceptions under which a duty to rescue arises. The Restatement
(Second) of Torts § 314 makes clear that “The fact that the actor realizes or should realize that action
on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to
take such action.”
Section 314A of the Restatement Second of Torts provides the following exceptions to the general rule
that one person need not assist another:
§ 314A. Special Relations Giving Rise to Duty to Aid or Protect
(1) A common carrier is under a duty to its passengers to take reasonable action:
(a) to protect them against unreasonable risk of physical harm, and
(b) to give them first aid after it knows or has reason to know that they are ill or injured, and
to care for them until they can be cared for by others.
(2) An innkeeper is under a similar duty to his guests.
(3) A possessor of land who holds it open to the public is under a similar duty to members of
the public who enter in response to his invitation.
(4) One who is required by law to take or who voluntarily takes the custody of another under
circumstances such as to deprive the othe r of his normal opportunities for protection is under
a similar duty to the other.
The duty that arises under Section 314A exists because of the spe cial relationship between the parties.
Restatement § 314A, cmt. b. The relationships listed in the rule are not intended to be e xclusive, id;
nevertheless, some courts have restricted the application of § 314A to business invitees.
The Restatement illustrates contexts in which arise both common law and statutory exceptions to
that general “no duty to rescue” rule. These include instances in which an entity has a duty to give first
aid or assist someone with whom it stands in a special relationship. The e xamples include a common
carrier exception (recall the

doctrine

imposing a higher duty on common carriers first seen in

Luther); an innkeeper (on similar grounds as common carriers); a possessor of land; and someone who
undertakes custody of another. In addition, courts tend to find such duties when a special relationship
exists (think parent/child, employer/employee, caregiver/dependent, close friends, perhaps even
teacher/student). Special duties can also arise by contract (employment contracts, or contracts to
provide services) as well as through certain other relationships governed by legal principles, such as
those shaping property ownership and imposing premises liability in certain instances.

Duty As a Function of Foreseeability (Socratic Script) | 243

Duties of Common Carriers and Innkeepers
The ne xt case revisits the common carrier doctrine (which you saw in Gulf v. Luther). Historically,
common carries and innkeepers were

subje ct to a heightened duty of care

as reflected in the

Restatement’s § 314(A). Bullock v. Tamiami explores that duty and the standard of reasonable care
implied by such a duty in the context of the segregated South. The Civil Rights Movement would
ultimately force an end to legally permitted segregation. However, in this case, you will find outright
racism (and outdated language) as well as facts involving violent assault for which the law provides a
remedy on the basis of a heightened duty.

Bullock v. Tamiami Tours Inc., United States Court of Appeals Fifth
Circuit (1959)
(266 F.2d 326)
The appellants are Negroes, British subjects, natives of Jamaica, married to each other, and in their
early fifties. For more than twenty years the husband has be en a minister of the Church of England.
The wife is a musician and teacher. Racial segregation is not practiced in the island of Jamaica.
Prior to 1956, the appellants had left that island on only one trip and that was to European countries
and South American countries which did not segregate the races. They were not familiar with the
racial segregation practiced in the Southern part of the United States.
In August 1956, they decided to make an e xtended visit to the United States, landing in Miami and
going by bus first to Kansas City and then to New York. They made arrangements for the trip through
the Mountain Travel Service before le aving Jamaica and bought tickets over the appellee’s bus line.
When the bus arrived in Perry, Florida, they were sitting together in the forward part of the bus usually
occupied by white passengers. The husband was dark or black, while the wife, though a Negress,
appeared to be a white woman.
At Perry, Florida, one Milton Poppell entered the bus and violently assaulted and beat the husband
and slapped the wife. The circumstances are well described in the testimony of Poppell, quoted in
13

the margin. Other evidentiary *329 facts are stated in some de tail in the opinion of the district court

13.

• Q. Mr. Poppell did you go on a bus in Perry and assault this man right here? A. Yes, I did.
• Q. Did you know he was on that bus before you went on there? A. Well, yes, I did.
• Q. Is that the reason you went on the bus? A. Well, not exactly.
• Q. Where were you going on that trip? A. I have got a farm out this side of Perry.
• Q. About how far is it? A. Approximately ten miles, maybe twelve.
• Q. Mr. Poppell, how did you know that the Reverend Bullock was on that bus? A. Well, the police and I were sitting
down there drinking coffee and I overheard the conversation of the bus driver telling the police that they were on

244 | Duty As a Function of Foreseeability (Socratic Script)

there. He didn’t say they were on there, he said, talking to them, ‘fellows look what I have got to contend with and
nothing I can do about it.’ And the police says, ‘our hands are tied too.’
• Q. He told that to the police officers? A. The best I remember that was the words said.
• Q. You heard— how far away were you? A. Well, I was sitting down there at the table.
• Q. At the table with the police officers? A. Yes, I was.
• Q. Then what did you say? A. I didn’t say anything right then. In a few minutes I got up and asked if I could buy a
ticket on the bus.
• Q. You asked the bus driver that? A. Yes.
• Q. Then what did he say? A. He said he had them for sale.
• Q. Mr. Poppell have you got anything against colored people, generally? A. Not as long as they stay in their place.
• Q. Well, why did you assault him? A. Because he was out of his place.
• Q. How did you know he was out of his place? The bus wasn’t full then, was it? A. Not at that time, it wasn’t, but
when everybody got on it was full. Whenever I got on it wasn’t full.
• Q. How do you know it wasn’t full? A. Well, there was plenty of loading space in the rear of the bus, but there wasn’t
any in the front.
• Q. Did anything the bus driver say lead you to believe he wasn’t in his place? A. Well, I don’t know whether you
would figure it was what the bus driver said or what I felt that he was out of his place too.
• Q. Isn’t it true that you wouldn’t have known, Mr. Poppell, about the Bullocks being on the bus if it had not been for
the bus driver? A. Well, I probably wouldn’t have noticed it.
• Q. Then if you hadn’t noticed it, you would not have gotten on the bus, isn’t that right? A. Well, I couldn’t say
whether I would or wouldn’t, because I just really don’t know whether I would have gotten on there or not. My
intention was not getting on there but then I decided to go.
• Q. At the time you heard the bus driver speaking you had no intention of getting on that bus, and you had your car
didn’t you? A. Yes, I did. I reckon I did. Yes, I did.
• Q. And when you heard the bus driver say something then you decided to get on the bus, isn’t that right? A. Yes, that
helped.
• Q. Mr. Poppell in your testimony in this court yesterday, you stated that you had nothing against colored people? A.
that’s right.
• Q. You added that if they kept their place? A. That’s right.
• Q. Did you attack the Reverend Bullock simply from the fact he was seated on the bus? A. Well, yes. And I wanted to
see and as a matter of fact he was with a white woman.
• Q. What do you mean, with a white woman? A. Well, his wife is supposed to be white, I understand.
• Q. How did you know who his wife was? Had you ever known the Bullocks before this? A. No.
• Q. How did you know who his wife was? A. Well, she was pointed out as she came in the bus station.
• Q. Was it the bus driver that pointed her out? A. I believe he made a remark to the policeman that that was his wife
coming in.
• Q. How did you happen to hear this? A. Well, I was sitting with the policemen.
• Q. With the policemen? A. Yes, sir.
• Q. How far were you from the bus driver? A. Well, it is just like the table in the restaurant, I was sitting down at one
end of it and one of the policemen was sitting on the opposite side and one on this side. And the bus driver walked
up to the table.
• Q. And he spoke to the policemen? A. Yes.
• Q. And what did he say, Mr. Powell (sic), again? A. I believe he says, and that is his wife there.’
• Q. And he pointed out Mrs. Bullock? A. Yes.
• Q. And she appeared to you to be white at that time? A. Yes, she did.
• Q. Did he say anything about the man on the bus being married to a white woman? A. I don’t remember.

Duty As a Function of Foreseeability (Socratic Script) | 245

reported in 162 F. Supp. at page 203 et seq.
After reaching New York, the appellants brought suit against the appellee in a New York State Court,
claiming that the appellee had breached the duties owed to them as passengers by omitting to warn
them of a foreseeable danger, by failing to protect them from that danger, and by willfully, or at least
negligently, aggravating the danger. The appellee, incorporated under the laws of Florida, being sued
by citizens and subjects of *330 Great Britain, had the case removed to the United States District
Court for the Eastern District of New York [Under 1332]. That Court transferred the action to the
United States District Court for the Northern District of Florida [Under 28 U.S.C.A. § 1404].
There the case was tried to the court without a jury. After fairly finding the e videntiary facts in a
manner to which the appellants take only minor exceptions, the district court entered judgment for
the defendant, feeling that the law of the State of Florida required it to do so, and said in part:
‘In Hall v. Seaboard Air Line Ry. Co., 84 Fla. 9, the Florida Supreme Court held that a carrier
was not liable to a passenger for an unprovoked and illegal assault in cases such as this case.
Without regard to the vie ws of this Court as to what the law should be in such a case as this
the de cision of this Court is completely controlled by the de cision of the Supreme Court of
Florida in the case cited above. ‘Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817,’
Bullock v. Tamiami Trail Tours, D.C.N.D. Fla.1958.
We are not in agreement with the district court either as to the Florida law or as to the ultimate
facts, inferences or conclusions of duty and breach of duty on the part of the appellant carrier. In
so far as those ultimate facts are simply the result reached by processes of legal reasoning from, or
the interpretation of the legal significance of, the e videntiary facts, they are subje ct to review by this
Court free from the restraining influence of the ‘clearly erroneous’ rule, Rule 52(a), Federal Rules of

• Q. Maybe this will refresh your recollection— did he say the man on the bus was married to a white woman? A. I
believe he did.
• Q. Did you hear it? A. Yes.
• Q. How far away were you from him? A. Well, he was standing at the head of the table and I was sitting down.
• Q. Now, of the two things, which do you think is the worse, in your opinion—A. Well, that’s about fifty-fifty
proposition.
• Q. You mean you don’t like either one? A. Either one. Otherwise he was out of his place in my opinion in the front of
the bus and he was certainly out of his place being married to a white woman.
• Q. Mr. Poppell when you went in there and asked him to move you didn’t give him a chance to move? A. Well, I
expected a fight back so I didn’t give him too much a chance.
• Q. Why did you expect a fight back? A. I didn’t figure he was going to give up his seat.
• Q. Why did you figure that he wouldn’t give up the seat? A. Well, just a matter of may [sic] opinion.
• Q. Is it a practice that all colored people in Perry have to move back? A. Yes.
• Q. Why did you expect this to be any different? A. Well, I guess by him riding so far without any trouble.
• Q. Actually didn’t you know that he had been asked to move? A. Yes, I did.
• Q. How did you find that out? A. I believe that the bus driver made the statement.
• Q. Now, is it your testimony that everything you knew about this man came from the bus driver or was there anyone
else who told you anything about it? A. No, it wasn’t discussed. The bus driver didn’t tell me anything at all and it
wasn’t discussed with anybody else. All I knew was what I overheard.

246 | Duty As a Function of Foreseeability (Socratic Script)

Civil Procedure, 28 U.S.C.A.; [c]. To the e xtent that the inference of negligence is controlled by Rule
52(a), supra, this Court, on the entire e vidence, ‘is left with the definite and firm conviction that a
mistake has been committed.’ [c].
In Hall v. Seaboard Air Line Ry. Co., 84 Fla. 9, 93 So. 151, the case relied upon by the district court
as dispositive of the case at bar, a female passenger was assaulted by a male passenger in a Pullman
berth, they being the only two occupants of the car. Holding that the plaintiff’s proof failed to support
her allegations that a porter and conductor heard her calls and bells in time to have prevented the
assault, the court stated:
‘The liability of the carrier in such case rests, not upon the tort of the passenger, but upon the
negligent omission of the carrier through its servants to prevent the tort being committed. A
failure to do anything which could have be en done by the servant to prevent the injury renders
the carrier liable. But to do something to prevent an injury resulting from an assault by a fellow
passenger implies knowledge on the part of the servant that the act is contemplated by the
stranger, or by due diligence the se rvant could have obtaine d such knowledge, or had the
opportunity to acquire it sufficiently long in advance of its infliction to have prevented it with
the force at his command. [c]
‘In guarding a passenger from a danger which is not usual or not incident to ordinary travel the
carrier is held to the use of ordinary and reasonable care and diligence. It is the failure of the
carrier through its agents to afford the required protection, after they had reasonable grounds
for believing that violence or the insult was imminent, upon which the liability of the carrier
rests. It is not the fact of injury to the passenger that fixes the carrier’s liability. The injury must
have be en of such character and inflicted under such circumstances as that it might *331 have
been reasonably anticipated or naturally expected to occur.’ [c]
In Kenan v. Houstoun, 1952, 150 Fla. 357, where, after alighting from the Florida East Coast train,
plaintiff was struck on the legs by an ejection of steam from a nearby L&N train causing her to move
about rapidly and fall over baggage, the court, in quashing a judgment against the Florida East Coast
Railway, stated:
‘* * * When it appears that the agency which caused the injury was other than defendant or its
agents the plaintiff must prove that defendant knew or by the e xercise of ordinary care could
have known of it in time to remove the cause of the injury. [c]
‘It is settled law that under the facts stated the Florida East Coast was bound to furnish
Mrs. Houstoun reasonably safe facilities for leaving the train and to remain in the station but
unless said company or its agents were in some way responsible or could have foreseen and
prevented the accident, it cannot be held responsible for injury caused by the negligent act
of a third person. In this case, the L. and N. Railway was the third person and we think was
responsible for the accident. It was in no way attributable to the ne gligence of petitioner
nor do we know of any criterion by which it could have be en put on notice of it. It had not
happened before and the character of it was of such a nature that it could not have be en
reasonably foreseen.’ [c]
Duty As a Function of Foreseeability (Socratic Script) | 247

Therefore, in Hall v. Seaboard Air Line Ry. Co. and Kenan v. Houstoun, supra, the rule may be generally
stated that a carrier is liable for injury to its passenger caused by a fellow passenger or a third party
if such injury by its nature could have be en ‘reasonably anticipated’ or ‘naturally expected to occur’ or
‘reasonably foreseen’ in time to have prevented the injury. (84 Fla. 9, 93 So. 157.) If the injury could have
been reasonably anticipated in time to have prevented its occurrence, the carrier is subjected to the
highest degree of care to its passenger either to protect him from or to warn him of the danger.

14

It was impossible for the driver to have protected the Bullocks from Poppell’s assault after his intent
became e vident, but we think that the district court was clearly erroneous in holding that Tamiami
could not have reasonably anticipated or foreseen the danger to the Bullocks in time to have at least
warned them of its imminence. We can visualize no stronger case than this to show a situation where
two bus drivers and the bus company officials should have reasonably anticipated that mischief was
hovering about and that the Bullocks were in some danger.
The first driver testified that many people in West Florida would not approve of the Bullocks’ being
seated together toward the front of the bus. Driver Cunningham stated that there would have be en
less chance of trouble if the Bullocks had been sitting in the back. The first driver, after explaining to a
complaining passenger that he could not move the Bullocks, heard another passenger say something
like ‘the y probably will move on down the line.’ Both drivers had actual notice of the two Company
bulletins dated January 31, 1953, and January 23, 1956, the latter plainly warning the drivers of possible
15

racial disturbances. Certainly, the first driver *332 and, no doubt, Cunningham knew the Bullocks
were Jamaicans and British Nationals, and it is logical to infer that the drivers knew the Bullocks were
not experienced with ‘southern tradition.’ All of the appellee’s witnesses testified that this was the first
instance the y knew of in that part of the country where a Negro man and a seemingly white woman
were seated together on a public carrier.
Furthermore, this Court will take

judicial notice

(as the

district court should have

done ) of the

commonly and generally known fact that the folkways prevalent in Taylor County, Florida, the county
seat being Perry, would cause

a reasonable

man, familiar with local customs, to anticipate

that

violence might result if a Negro man and a seemingly white woman should ride into the county seated
16

together toward the front of an interurban bus.

The ne xt question is whether or not Tamiami, so charged with a duty of foreseeing danger to its
passengers, took proper precautions to avoid such danger by the ‘utmost care and diligence of very
cautious persons.’ We think that Tamiami failed to exercise this care in se veral ways. It should have

14. See, 10 Am. Jur., Carriers, §§ 1453-1470; [cc] A.L.I., Restatement of Torts, § 348. The duty to warn is identical to the duty
to protect. See Rose v. City of Chicago, 317 Ill. App. 1, 45 N.E.2d 717.
15. ‘Under No Circumstances Shall Police Authorities Be Summoned If A Passenger Refuses A Seating Or Reseating Request.
Should Any Disturbance Arise, Police Authorities May Be Summoned To Quell Such Disturbance.’
16. In United States ex rel. Goldsby v. Harpole, 5 Cir., 1959, 263 F.2d 71, 82, this Court said: ‘* * * The Supreme Court of
Mississippi has said that, ‘We have the right to make use of knowledge of the popular and general customs of the people
of this State, and public conditions therein.’ Moore v. Grillis, 1949, 205 Miss. 865. A like authority and duty is vested in
this Court.’ Citing, City of Hughes Springs, Tex. v. Lips, 5 Cir., 1941, 118 F.2d 238; Rogers v. Douglas Tobacco Board of
Trade, 5 Cir., 1957, 244 F.2d 471, 478; Mays v. Burgess, 1945, 79 U.S.App.D.C. 343; 20 Am. Jur., Evidence, Sec. 108.
248 | Duty As a Function of Foreseeability (Socratic Script)

instructed its agency in Jamaica to advise Negroes applying for passage through the southern part of
17

the United States of the South’s tradition of segregation. It should have instructed its driver to advise
Negroes who were obviously foreigners, here known to be such, of segregation customs. The driver
should have e xplained to the Bullocks his reasons for wanting them to move. Above all, the driver
should not, either willfully or negligently, have informed the assailant of the Bullocks’ position on the
bus and of their apparent color and lack of color.
The district court found, at least impliedly, that Tamiami was not guilty of any willful or aggravated
misconduct justifying the imposition of punitive damages, and to that extent its finding is not clearly
erroneous. Upon the present record, however, we conclude that the danger should reasonably have
been foreseen by Tamiami in time to act with the utmost care to avoid injury to its passengers,
particularly by warning them and by not doing foolish things to increase their danger, and that
Tamiami breached the duty owed to its passengers, the appellants. The judgment is therefore reversed
18

and the cause remanded with directions

to enter judgment for each of the plaintiffs, appellants,

and upon the e vidence contained in this record, to award each of them reasonable compensatory
damages, including damages for physical injury and mental suffering and humiliation.

19

Reversed and remanded with directions.
Note 1. Reading the

assailant’s testimony included in the

court’s footnote

makes his culpability

unmistakable. He boarded the bus—despite having his car with him—only after learning from the bus
driver that a supposedly interracial couple was on the bus and not following the rules regarding where
on the bus the y were allowed to sit. He didn’t give the Bullocks notice or a chance to move. He bought
a ticket expressly in order to pick a fight that had been as much as invited by the bus driver. The court
treats the assailant’s actions as intentionally tortious and the bus driver’s conduct as negligent (“not
guilty of any willful or aggravated misconduct justifying the imposition of punitive damages”). Do you
agree? Based on your study of the intentional torts and requisite intent levels, at what point should
the bus driver, too, be de emed to have participated or spurred on Poppell? What facts, if any, would
clearly convert the driver’s conduct from unreasonable to intentional?
Note 2. Judicial Method, Rhetoric and Tone. On certain fact patterns in which an obvious wrong
has been committed, it can be e asy to feel intuitively frustrated by the law’s slow analytic process of
following particular steps in formal analysis. To what extent is “formalist” analysis appropriate when
actions are so plainly discriminatory? Should the law be permitted to focus on function over form
in cases in which significant dignitary rights are at stake? If so, what contexts seem to you to be
appropriate? What responsibilities does a court have to identify when conduct goes well beyond the
acceptable? If we assume d the substance of the outcome were the same in 2021 as it was back in 1959,
how would the rhetoric of this court sound, do you think? Often, contemporary courts use a tone that
seems to aspire to “colorblindness” rather than expressly calling out dynamics of race. Why might this
be the case? Should this change? Why or why not, and how so?

17. Pelot v. Atlantic Coast Line R. Co., 1911, 60 Fla. 159.
18. See 28 U.S.C.A. § 2106.
19. See Atlantic Greyhound Lines v. Lovett, 1938, 134 Fla. 505, 184 So. 133, 140.
Duty As a Function of Foreseeability (Socratic Script) | 249

Note 3. One of the le ading scholars on questions of race and gender in tort law has written that the
doctrinal reasoning in Bullock reflects the race politics of its era: “The duty of the carrier, then, was
specific to that time and place, and was specifically based on anticipating racist attacks. All of the
bus company’s witnesses stated that this was the first time the y knew of a black man and a white
woman sitting together on a bus or train in that region. The attacks should have be en anticipated, not
simply because a black person was sitting in the front of the bus, but be cause the combination of “a
Negro man and a seemingly white woman” sitting together in the front was obviously incendiary. The
Fifth Circuit recognized this as a risk-creating combination of people, space, and circumstances. By
contrast, the trial court ignored the volatile gender-race confluence and saw this assault as a fluke,
as unforeseeable, and therefore some thing for which the bus company should not be liable. … To the
trial court, the harm was unforeseeable, and thus the company had no duty to prevent it. [***] Both
views about duty and foreseeability of risk are dependent on opposing empirical conclusions drawn
by courts.” Jennifer B. Wriggins, Toward A Feminist Revision of Torts, 13 Am. U. J. Gender Soc. Pol’y & L.
139, 150-151 (2005) (internal citations omitted)
It is somewhat difficult to reconcile the se different perceptions of foreseeability without reference to
the historical context and the particular social context of each court. Relatedly, what do you make of
the lower court’s statement that it is bound, descriptively, by the law it must follow: “Without regard
to the vie ws of this Court as to what the law should be in such a case as this the de cision of this Court
is completely controlled by the decision of the Supreme Court of Florida in the case cited above.”
How does it square with the appellate court’s response: “We are not in agreement with the district
court either as to the Florida law or as to the ultimate facts, inferences or conclusions of duty and
breach of duty on the part of the appellant carrier.”
Throughout this book, we have distinguishe d descriptive and normative accounts of law. Are there
instances in which we ought to expect these two categories may blur? Does this blurring suggest that
entrenched structural racism is a symptom of our legal system or a byproduct or are there other
possibilities for how the courts interpret the law here?
Note 4. The context of the case may seem to make its facts exceptional. However, plaintiffs continue
to bring lawsuits charging common carriers with breach of duty to provide safe passage. In an era
in which racial tensions have be en heightened nationally for several years and many people rely on
public transportation to get to their schools and jobs, what scope of duty do you think is appropriate
for common carriers? Not all jurisdictions retain a heightened duty; for instance, New Jersey does
so though New York imposes only a reasonable a duty of care. How far should common carriers be
expected to go when unruly or dangerous passengers begin to make trouble for other passengers?
Recall the foreseeability analysis of Walls v. Oxford Management.
Could the reasoning from Walls be applie d in this context? A recent case suggests judicial willingness
to hold such defendants to account even for conduct by third parties. The attacks on the passenger
are violent and ugly in nature, and the court considered the policy issues explicitly and with laudable
nuance. Consider as you read this excerpt of the case whe ther gender, race, class and age are likely to
have played any role in the facts or in judicial analysis of the facts.

250 | Duty As a Function of Foreseeability (Socratic Script)

Maison v. New Jersey Transit Corporation, Supreme Court of New Jersey
(2021)
(245 N.J. 270)
[***] Every day, throughout this state, thousands of people take buses and trains to commute to
work, visit family and friends, and travel to vacation spots. Those modes of transportation are known
as common carriers. Passengers pay fares to common carriers to safely transport them to their
destinations. Under the common law, privately owned carriers owe their passengers a heightened
duty of care to act with the utmost caution to protect them, even from the wrongful acts of copassengers – a duty to act as would a very careful and prudent person in light of the circumstances.
[***] In this case, plaintiff Anasia Maison on her commute home from work took an NJ Transit bus.
During the ride, a group of four to five te enagers verbally and physically harassed her as the bus driver
silently watched and drove on. Despite the e scalating threats and unruly behavior toward Maison, the
bus driver did nothing – did not call out the te enagers, stop the bus, or contact *275 NJ Transit or
the police. As one of the te enagers disembarked, he threw a bottle striking Maison in the forehead,
causing a permanent and serious injury.
On July 21, 2013, Anasia Maison, a twenty-year-old college student, was working at a New York City
pharmacy until her shift ended at 12:00 a.m. on July 22. On her way back home to Newark, she first
took an NJ Transit train to Penn Station in Newark, arriving there at around 1:00 a.m. At Broad and
Market Streets, she boarded an NJ Transit bus operated by defendant [bus driver] Coats. She paid
her fare and took a se at towards the rear of the bus. Two rows behind her were four to five male
teenagers. *277 Maison testified that as soon as the bus pulle d away, she was struck on the side of her
face by an unknown object “thrown very hard” by one of the te enagers. She turned to them and asked,
“why are [you] bothering me?” One of the young men said to his friends that Maison “should ‘f’ one of
them up.” A few seconds later, another object was thrown at her, but it hit only the chair. She turne d
again and asked the young men to stop harassing her. They told her “to shut the f**k up” and loudly
hurled insults at her. In response, Maison admittedly used foul language, but the stream of profanities
from the young men continued. Maison could see the bus driver, Coats, watching the commotion in
his rearview mirror, but Coats kept driving.
When one of the teenagers brandished a knife, Maison said “out loud,” [sic] “I need help.”
Although she could not tell whether Coats heard her, she saw that he was peering at her through
his rearview mirror. Frightened, Maison got up and moved toward the front of the bus, but when
a passenger told her, “[you] better not come up here,” she returned to her seat where the insults
continued to rain down on her. She trie d to make a call from her cell phone, but the signal failed – and
the attempted call caught the attention of the youths. A minute or two later, one of the te enagers rang
the bell for the bus to stop. As the y were le aving through the rear side door of the bus, Maison he ard
a passenger tell one of them, “don’t do it” – and then, all of a sudden, a bottle struck he r in the face. As
she ble d from the forehead, the youths continued to taunt and threaten her through the open door of
the bus.

Duty As a Function of Foreseeability (Socratic Script) | 251

Maison called out for help, yelling: “I need ambulance. I need police.” Coats remained in his seat.
A passenger gave her a cell phone, which she used to call the police and an ambulance. After the
ambulance arrived, Maison was transported to Beth Israel Hospital, where she received twenty-two
stitches to treat the wound to her forehead – the site now of a permanent scar that has left her
self-conscious about her appearance. In the aftermath *278 of the attack, she suffered from very bad
headaches and delayed her college graduation.
In his testimony, Coats recalled that Maison boarded the bus at about 1:14 a.m. and, immediately
afterwards, four to five young men entered and took seats behind her. As he drove, he observed
through his rearview mirror the young men and Maison “cursing back and forth” –“a lot of b’s and f’s.”
[fn] A passenger interceded and said to the young men, words to the effect of, “don’t disrespect her,
don’t call her the b word.” According to Coats, Maison “was handling herself very well.” He monitored
the situation and knew that there was a threat to Maison. He acknowledged that his job was to get his
passengers “from point A to B safely” but also stated in his deposition testimony read to the jury that
“it’s not my job to get involved. First of all, my safety comes first.”
Seven to eight minutes into the drive from Broad and Market Streets, where the verbal conflict began,
someone pressed the bell for the Hayes Circle stop. Arriving there, Coats opened the front and rear
doors, and then he heard “a smack,” “glass breaking,” and “Maison screaming.” He looked back and saw
that Maison had been hit and was bleeding profusely and that a passenger was consoling her. Coats
got up, observed the shattered pieces of a liquor bottle on the ground and seats, and asked if she
wanted an ambulance or the police. She “screamed,” “yes.”
Coats, however, did not call directly for an ambulance

or the

police
. He

followed NJ Transit’s

procedure and pushe d a button to call NJ Transit’s control center. Coats waited for about fifteen
minutes before the control center returned his call. The control center then contacted the police and
emergency medical services. Coats did not believe that NJ Transit policy permitted him to use his cell
phone to contact first responders.
*279 Coats stated that he ne ver observed the young men throw objects at Maison or flash a knife,
never heard Maison call out to him, and never saw her get out of her seat. He admitted that he
monitored the situation in the rear of the bus during the se ven- to eight-minute ride to Hayes Circle
and that he did not stop the bus, te ll the young men to “knock it off,” call the police, or contact NJ
Transit’s control center until after Maison was hit with the bottle.
The police never apprehended the young men who tormented and assaulted Maison. [***]
[The bus driver attempted at trial to state that he had merely been enforcing the law. A footnote calls
that into question] “The court asked defendants’ counsel what law the bus driver was “executing or
enforcing.” He responded, “[c]andidly I’m at a loss to articulate one.””
[***] The jury was charged on the law applicable to common carriers, as set forth in Model Jury
Charges (Civil), 5.73(A)(2), “Carriers for Hire” (approved June 1988). The court instructed the jury that
[a] common carrier must exercise a high degree of care to protect its passengers from dangers
that are known or reasonably foreseeable. Carriers must use the u[t]most caution to protect
252 | Duty As a Function of Foreseeability (Socratic Script)

their passengers. The kind of caution that is characteristic of a very careful and prudent
person. A carrier must act with the highest possible care consistent with the nature of the
undertaking involved. This includes the duty to protect passengers from wrongful acts of copassengers if the u[t]most care could have prevented those acts from injuring a passenger.
If a danger was known or reasonably could have be en anticipated[,] the carrier has a duty to
protect its passenger from any injury that could be caused by that danger.
*280 The

jury returned a verdict finding both NJ Transit and Coats liable. The jury also found

that Maison sustained a permanent disfigurement from her injury and awarded her $1,800,000 in
damages. [***] The Appellate Division affirmed in part and reversed in part, remanding for a new
trial only on the allocation of fault between the bottle thrower and defendants. [fn] [cc] The Appellate
Division concluded that the trial court correctly held NJ Transit to “the common carrier standard of
negligence” and observed that “our case law has viewed bus lines generally, and public transit systems
specifically, as common carriers for many years.” [***]
Last, the Appellate Division de termined that the trial court erred in not placing the bottle thrower
on the verdict sheet to allow for the allocation of fault among the tortfeasors. [c] [W]e affirm the
Appellate Division, including its determination that the damages award should stand and that the ne w
jury should not be informed about the amount of the award.
Note 1. The court reasons that “If a danger was known or reasonably could have be en anticipated[,]
the carrier has a duty to protect its passenger from any injury that could be caused by that danger.” Is
this merely following the scope and logic of Tarasoff or does it expand upon that earlier case?
Note 2. What does it mean to “plac[e] the bottle thrower on the verdict sheet,” both practically and
legally?
Note 3. The court ruled that the damages award stands and the jury should not be informed of the
amount. Why? What does the court presume may happen? What concerns are animating this decision
to let the award stand but also to allow its potential reallocation?

Duties Related to Premises Liability
Special rules that vary by jurisdiction and circumstance define the dutie s of possessors of land to
those who enter it, as illustrated above in the Restatement’s Section 314A. Most jurisdictions follow the
traditional rule at common law and determine the duties of possessors of land based on the status
of the entrant: a trespasser, a licensee or an invitee. The distinctions among duties of care owed to
these three categories of entrants arose due to the social hie rarchy of the feudal system: medieval
landowners held land and were thought to deserve the right to enjoy it without concern for protecting
against injury to those who entered their land without permission. William Prosser, Law of Torts 359
(4

th

ed. 1971).

Roughly twenty-two jurisdictions have either abolished or modified the status-based system, by
Duty As a Function of Foreseeability (Socratic Script) | 253

judicial decision or statute or both. Most of these follow a landmark ruling in California that paved the
way for the modern approach, which mandates that a duty of reasonable care is owed to all entrants
regardless of status but applies a series of factors that particularize the duty further.
Note that for our purposes, “owners,” “possessors” and “occupiers” of land are use d interchangeably
and courts and legislatures take varying approaches on whether they use one or more of the terms.
The primary point for you to take from that is that a person need not own property to be liable for
harm that occurs on it, if they are otherwise the posse ssor or occupier of that property. (Usually a
possessor means the person presently permitted to be there, such as a renter or longterm guest; an
occupier is the person who is presently inhabiting the premises whether or not they have a legal right
to do so).
Traditional Status-Based Approach. Idaho, whose slip-and-fall case, McDonald v. Safeway, is assigned
in Module 3 (under Circumstantial Evidence), sets out the following rules:
“Invitees are owed the highest duty of care in premises liability, and there are two avenues for
a plaintiff to establish that he is an invitee. … A plaintiff can either establish that he was on the
premises “for a purpose connected with the business conducted on the land,” or that “it can
reasonably be said that the visit may confer a business, commercial, monetary or other tangible
benefit to the landowner.” [c]
In Idaho, a landowner owes an invitee the duty to keep the premises in a reasonably safe
condition and or to warn the invitee of any concealed or hidden dangers. Often, litigation
centers on whether the landowner knew or should have known of a particular risk. A second issue
that arises with some frequency is whether the invitee e xceeded the scope of their permitted
access. For instance, if a customer in a grocery store sne aks into the back room to use the
employee restroom and trips over a carelessly placed mop, the customer may be treated not as an
invitee but as a licensee or possibly a trespasser (both the facts and the spe cific jurisdiction’s case
law matter to the analytical outcome).
On the other hand, ‘[a] licensee is a visitor who goes upon the premises of another
with the consent of the landowner in pursuit of the visitor’s purpose.’” [c] Dupuis v. E.
Idaho Health Servs., Inc., No. 47917, 2021 WL 1416551, at *5 (Idaho Apr. 15, 2021)
In Idaho, a property owner owes a licensee the duty to share knowledge of dangerous conditions
or activities on the land, usually through warning signs or some other means of putting entrants
on notice. This duty specifies a lower standard of care to a licensee than to an invitee; the
land owner need not fix a dangerous condition with respect to a licensee’s presence on their
premises but must merely warn of it once it is discovered (or ought to have be en discovered by the
owner). The distinction between the first two categories, then, is that invitees are people whom
a business invites onto their premises as part of its provision of services or goods; invitees are
analogous to customers. Licensees are those who are merely permitted to be on the premises,
more like guests or visitors. The rationale for the higher standard of care towards invitees is that
the owner is seeking to profit off the invitee’s presence on their premises and thus the invitee
ought to be able to expect reasonable efforts to make the premises safe.
254 | Duty As a Function of Foreseeability (Socratic Script)

“Anyone who goes upon the private property of another without lawful authority or
without permission or invitation, express or implied, is a trespasser to whom the
landowner owes no legal duty until his presence is discovered. [The landowner] is
only required to refrain from wanton or willful acts which occasion injury.” [c] “But,
once the presence of the trespasser becomes known or reasonably could have been
anticipated, the land owner has a duty not to injure the trespasser by any intentional
or reckless act.” “This standard of conduct prohibits the owner from engaging in
“intentional or reckless actions, taken under circumstances where the actor knew or
should have known that the actions not only created an unreasonable risk of harm
to another, but involved a high degree of probability that such harm would actually
result.” [c]
Idaho’s rules are representative of the common law rules and the majority of jurisdictions retain the
“tripartite” system of classifying duties according to status of entrant.
Modern Approach. In Rowland v. Christian, plaintiff James Rowland was a guest in defendant Nancy
Christian’s apartment. When he used the bathroom faucet, the porcelain handle broke, causing serious
injury to his hand which included severing tendons and nerves and which led to Rowland’s incurring
$100,000 in general damages. It did not appear that the crack in the handle was obvious to ordinary
inspection or concealed although Rowland had used the sink before. Christian knew for two weeks
that it was broken and had asked the landlord to repair it but failed to warn Rowland. Students often
wonder why a guest would sue their host and whether other defendants were not available. First,
duties of “possessors” of land reaches more broadly than owners; as a renter, Christian had certain
duties that were distinct from those of the landowner. Second, the Supreme Court’s opinion does not
clarify that the two did not know each other well, a fact that was included in the appellate court’s
opinion: they were introduced through a mutual friend and Christian had agreed to drive Rowland to
the airport so he could board a plane. For reasons the record does not divulge, either she invited him
to her apartment beforehand and he was injured using the bathroom while waiting for the defendant
to get ready for the drive to the airport, or he appe ared at her apartment to ask for a ride. (The
facts appear contested on this point.) The time he injured his hand was not the first time using the
faucet but the record does not contain many more clues beyond that. The trial court granted summary
judgment and the appellate court somewhat reluctantly affirmed, noting that on the record it did not
believe it could change the law but implying its desire to do so. (“We are mindful of the criticisms
directed at the California rule. [c] In the present case, however, the scope of our review is defined by
the rules applicable to summary judgments. Acting within a context thus limited, we have concluded
that substantive law cannot be changed on the narrow evidentiary base presented by this record.”
Rowland v. Christian, 63 Cal. Rptr. 98, 104 (Ct. App. 1967)).
The appellate court’s analysis focused on whether a known condition such as a broken faucet handle
was analogous to a trap since the “trap exception” could give rise to a duty to warn entrants on land
and in some cases a duty to remedy or “protect” them. Its analysis reflects a formalistic emphasis on
remaining within the contours of existing law. The Supreme Court took a different tack, treating the
case as a paradigmatic example of the fundamental principle that everyone has a duty to refrain from

Duty As a Function of Foreseeability (Socratic Script) | 255

causing harm to others. A civil statute in California had long codified that rule, lending further support
for the court’s reasoning.
It’s worth noting that one of the le ading proponents of the modern view of generalized duty, William
Lloyd Prosser, was the De an of U.C. Berkeley’s law school from 1948-1961 and then a professor at
U.C. Hastings Law School. He was a venerated jurist nationally as well as in California in particular
and his treatise, textbook and massive contributions to the Restatements on Torts meant that he
had directly or indirectly shaped the vie ws of many students and judges. It is hard to overstate his
influence on tort law (then and now). Recall that at early common law, the general rule was no duty
absent contract, privity or some other justification for creating an affirmative duty. From Prosser’s
reformulated approach to duty—that everyone had a general duty unless some exception existed—the
Rowland court could argue that the tripartite system of status-biased duties effectively created a
set of immunities that reduced the general duty. Under the old view of duty, the tripartite system
could be cast as adding or creating duties rather than limiting them. This new reading inverted that
description of duties and immunities. This inversion is key to understanding the revolution Rowland
brought about.
Rowland identified factors to consider in permitting a departure from the general duty rule and then
pointed out how the status of the entrant was not dispositive in analyzing those factors. It cast the
traditional system of defining limited duties as linked to historic rationales that had grown outdated:
The ordinary justification for the general rule se verely restricting the occupier’s liability to
social guests is based on the the ory that the guest should not expect special precautions to be
made on his account and that if the host does not inspect and maintain his property the guest
should not expect this to be done on his account. [c] An increasing regard for human safety
has led to a retreat from this position, and an exception to the general rule limiting liability
has been made as to active operations where an obligation to exercise reasonable care for the
protection of the licensee has been imposed on the occupier of land. Id. at 114, 565.
Clearing away “the ancient concepts as to the liability of the occupier of land” and applying standard
negligence analysis, it reversed the grant of summary judgment. The court held that because Christian
appeared to be aware that the faucet handle was dangerous and had failed to warn or remedy, her
behavior constituted negligence: “Whether or not a guest has a right to expect that his host will
remedy dangerous conditions on his account, he should reasonably be entitled to rely upon a warning
of the dangerous condition so that he, like the host, will be in a position to take spe cial precautions
when he comes in contact with it.” Id. at 120.
Even in the jurisdictions that have abandone d or modified status-based duties, subsequent courts
often refer to the “Rowland factors” in analyzing the duties of possessors of land. Consequently,
courts end up continuing to make some distinctions among entrants along factually nuanced, if not
categorical lines. See Perez v. S. Pac. Transportation Co., 218 Cal. App. 3d 462 (Ct. App. 1990) (“The status
of a claimant at the time of his injury no longer affects the general duty of the possessor of property
to exercise ordinary care with respect to reasonable foreseeable risks of personal injury to persons
coming on the property. The possessor’s duty of ordinary care e xtends to invitees and trespassers
alike, although the foreseeability of injury, and hence the de gree of care required of a possessor,
256 | Duty As a Function of Foreseeability (Socratic Script)

continues to be influenced by the

likelihood that persons will be present on the

property at a

particular time and place, a likelihood normally considerably greater for invitees than for trespassers.”)
Given tort law’s propensities for fact-sensitive adjudication, can you see why? Cutting against that,
since duty is ordinarily a question of law not fact, is the modern view introducing unnecessary
complexity in the form of these factual, rather than categorical inquiries?
“A departure

from this fundamental principle

involves the balancing of a number of

considerations; the major ones are (1) the foreseeability of harm to the plaintiff, (2) the degree
of certainty that the plaintiff suffered injury, (3) the closeness of the connection between the
defendant’s conduct and the injury suffered, (4) the moral blame attached to the defendant’s
conduct, (5) the policy of preventing future harm, (6) the e xtent of the burden to the defendant
and (7) consequences to the community of imposing a duty to exercise care with resulting
liability for breach, and the (8) availability, cost, and prevalence of insurance for the risk
involved.” Id. at 112–13, 564. [enumeration added]
Which approach seems more sound, in your view, the status-based system of duties or a general
duty informed by the Rowland factors? What do these factors add that is not already involved in duty
analysis?

Expand On Your Understanding – Taco Bell Hypothetical

Duties Owed to Business Invitees in Traditional-Rule Jurisdictions
In these jurisdictions, business owners who profit from “invitees” coming onto their property owe those
invitees a higher duty of care. But how high? A man entered a Taco Bell store to buy a soft drink. As he
was paying, he suddenly fell backward, was knocked unconscious, and began having a seizure. At trial, it
was disputed whether or not the customer, Baker, received any help from Taco Bell after he came to.
The employee claims she offered assistance and Baker stated that he did not need an ambulance. Baker
then stood up and fell again, was again knocked unconscious, knocked out his four front teeth and
cracked the seventh vertebra of his neck. When he regained consciousness, he was choking on the blood
and teeth in his mouth. He stumbled out of the store and was able to get help elsewhere.
Question 1. Is a customer who has a seizure on a business’s premises owed a duty of reasonable care
with respect to foreseeable harms? Descriptively? Review the language of Restatement § 314A, above.

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=54#h5p-60

Question 2. How about normatively? What arguments would you offer in support of your views?

Duty As a Function of Foreseeability (Socratic Script) | 257

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=54#h5p-61

Check Your Understanding – Set 20

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=54#h5p-62

Reflect on Your Understanding – Rowland v. Christian
Compare the two rationales offered below, drawn from Rowland’s majority and dissenting opinions.
Which do you find more persuasive? Who is most likely to be better served by the arguments in each
opinion? How does each serve or disserve the purposes of tort law?
(1) Rowland v. Christian, 69 Cal. 2d 108, 118 (1968) Majority opinion: “A man’s life or limb does
not become less worthy of protection by the law nor a loss less worthy of compensation
under the law because he has come upon the land of another without permission or with
permission but without a business purpose. Reasonable people do not ordinarily vary their
conduct depending upon such matters, and to focus upon the status of the injured party as a
trespasser, licensee, or invitee in order to determine the question whether the landowner has
a duty of care, is contrary to our modern social mores and humanitarian values. The common
law rules obscure rather than illuminate the proper considerations which should govern
determination of the question of duty.”
(2) Rowland v. Christian, 69 Cal. 2d 108, 120 (1968) Dissent: In determining the liability of the
occupier or owner of land for injuries, the distinctions between trespassers, licensees and
invitees have been developed and applied by the courts over a period of many years. They
supply a reasonable and workable approach to the problems involved, and one which provides

258 | Duty As a Function of Foreseeability (Socratic Script)

the degree of stability and predictability so highly prized in the law. The unfortunate
alternative, it appears to me, is the route taken by the majority in their opinion in this case;
that such issues are to be decided on a case by case basis under the application of the basic
law of negligence, bereft of the guiding principles and precedent which the law has heretofore
attached by virtue of the relationship of the parties to one another.
Liability for negligence turns upon whether a duty of care is owed, and if so, the extent
thereof. Who can doubt that the corner grocery, the large department store, or the financial
institution owes a greater duty of care to one whom it has invited to enter its premises as a
prospective customer of its wares or services than it owes to a trespasser seeking to enter
after the close of business hours and for a nonbusiness or even an antagonistic purpose? I do
not think it unreasonable or unfair that a social guest (classified by the law as a licensee, as
was plaintiff here) should be obliged to take the premises in the same condition as his host
finds them or permits them to be. Surely a homeowner should not be obliged to hover over
his guests with warnings of possible dangers to be found in the condition of the home (e.g.,
waxed floors, slipping rugs, toys in unexpected places, etc., etc.). Yet today’s decision appears
to open the door to potentially unlimited liability despite the purpose and circumstances
motivating the plaintiff in entering the premises of another [***].
In my view, it is not a proper function of this court to overturn the learning, wisdom and
experience of the past in this field. Sweeping modifications of tort liability law fall more
suitably within the domain of the Legislature, before which all affected interests can be heard
and which can enact statutes providing uniform standards and guidelines for the future.

Duties to Children. Landowners may owe children special duties, even when they trespass. The (bestever-named) doctrine of Attractive Nuisance se ts out specific duties to safeguard one’s land against
known attractions and risks.
Restatement 2d Section 339 – Artificial Conditions Highly Dangerous to Trespassing Children – A
possessor of land is subject to liability for physical harm to children trespassing thereon caused by an
artificial condition upon the land if:
(a) the place where the condition exists is one upon which the posse ssor knows or has reason
to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he
realizes or should realize will involve an unreasonable risk of death or serious bodily harm
to such children, and
(c) the children because of their youth do not discover the condition or realize the risk
involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the
danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to
protect the children.
Under the attractive nuisance doctrine, trespassing children have the burden of proving that they
Duty As a Function of Foreseeability (Socratic Script) | 259

did not anticipate the danger when entering the property; it is the e xpectation that their immaturity
will make it difficult for them to understand the risk that justifies the doctrine. Otherwise, it will
be assume d that they are ordinary trespassing thrillseekers who understood the risk and proceeded
anyway. The plaintiff must also prove that it was feasible for the landowner to eliminate the dangerous
condition. This may not mean removing something dangerous but it may require boarding it up or
taking other steps to repair or limit access. The cases originally arose to protect children playing on
railroads but the fact patterns have involved swimming in unbarricaded water or pools, diving from
various structures, and other activities involving unsecured machinery.

Summary of Duties of Owners and Possessors of Land—Majority and Minority Approaches
Traditional
“Tripartite”
Approach (majority
approach)

Status of
Entrant

Business
Invitee

Duty to keep the premises in a reasonably safe condition and or to
warn the invitee of any concealed or hidden dangers

Licensee

Duty to warn of dangerous conditions or activities on the land

Duty not to intentionally injure (through traps or spring guns, e.g.).
Trespasser

Modern Approach
(CA)

No duty until trespasser’s presence is discovered or reasonably ought
to have been discovered; then a duty to refrain from wanton and
wilful conduct that could injure trespasser; in some jurisdictions, also
a duty to warn of latent or hidden defects.

Children

Duty to exercise reasonable care to eliminate dangerous conditions
creating extraordinary risks of harm to children (“attractive nuisance
doctrine”)

All Entrants

Duty of reasonable care

Children

Duty of reasonable care

Duties That Specify Particular Conduct
Implicit in discussions of duties owed to children and to specific classes of entrants under the
traditional approach is that in some instances, determining whether a duty exists and the standard of
care it requires become interdependent questions. Put another way, in the area of limited duties, duty
is sometimes articulated as a duty to do a specific thing—that is, as an act-centered kind of duty
rather than a purely relational one.

260 | Duty As a Function of Foreseeability (Socratic Script)

Discussions of limited duty will often entail some spe cification of the standard of care or spe cific
acts. Given this, you might consider whether such duty determinations should be shifted to the jury
as a question of fact or retained for determination by the judge as duty questions usually are. One
justification for retaining them as a question of law is that whole classes of actors may be similarly
situated. Do Taco Bell and restaurants like it owe a duty to take particular steps to its business invitees?
Do Carnival and other cruise ship operators owe a duty to take particular steps to keep customers on
its cruises safe? In the ne xt case, Carnival may have had a duty to do X with respect to Ms. Carroll
but not a duty to do Y. Either way, it is beyond doubt that Carnival did have a duty to Ms. Carroll; the
question is what that duty required of Carnival.

Carroll v. Carnival Corporation, U.S. Court of Appeals, Eleventh Circuit
(2020)
(955 F.3d 1260)
Elaine Carroll tripped over the leg of a lounge chair while she was walking through a narrow pathway
on a Carnival cruise ship. She sue d Carnival, alleging that it negligently failed to maintain a safe
walkway and failed to warn her of that dangerous condition. The district court granted summary
judgment in favor of Carnival on both claims, concluding that the condition was open and obvious and
that Carnival lacked actual or constructive notice of the hazard. After review of the record and the
parties’ briefs, and with the benefit of oral argument, we reverse. ***
In March of 2015, Mrs. Carroll and her husband Michael were passengers on board the Carnival Pride.
On the first full day of the cruise, Mrs. and Mr. Carroll *1263 were walking to one of the restaurants,
David’s Steakhouse, on Deck 11 of the ship. The oute r glass wall of David’s Steakhouse is curved in the
shape of a semi-circle. Lounge chairs are se t up in a semi-circular shape along the curved glass wall
of the restaurant.
To get to the restaurant, the Carrolls had to walk on a curved walkway between the foot-end of the
row of lounge chairs (on their right side) and the ship’s railing (on their left side). When they initially
approached the walkway, there were approximately two to three feet between the chairs and the
railing, so they were able to walk side-by-side. At some point after passing the first chair, however,
the distance be twee n the chairs and the railway narrowed, so Mrs. Carroll’s husband walked in front
of her and she followed behind him. While Mrs. Carroll was walking behind her husband, her right foot
clipped the leg of one of the lounge chairs, causing her to fall and suffer injuries.
Mrs. Carroll sued Carnival for negligence. She asserted, among other things, that Carnival negligently
maintained a dangerous condition—“lounge chairs that narrowed and protruded onto a pedestrian
walkway”—and negligently failed to warn passengers of the danger associated with that condition.
Carnival moved for summary judgment, arguing that the lounge chairs did not constitute a dangerous
condition, and even if they did, it had no duty to warn of the condition for two reasons. First, the
condition was open and obvious. Second, Carnival lacked notice of the hazard. Mrs. Carroll opposed
the motion, responding that although the lounge chair that she trippe d on was not hazardous in and
Duty As a Function of Foreseeability (Socratic Script) | 261

of itself, the location of the lounge chairs and the manne r in which the y were arranged constituted a
dangerous condition. She also argued that the condition was not open and obvious because, due to the
layout of the lounge chairs and the narrowness of the path, she was forced walk behind her husband,
obstructing her view. And she asserted that she did not ne ed to prove that Carnival had notice of the
hazard because it created the unsafe condition.
Both parties presented evidence in support of their positions, including the deposition testimony of
Mrs. and Mr. Carroll and several Carnival employees. Mrs. Carroll also presented the affidavit of an
expert, Randall Jaques, who opined that the walkway was unsafe and fell below industry standards.
[The district court granted Carnival’s motion for summary judgment, concluding that Carnival lacked
notice of the danger but need not reach that issue be cause it found that Carnival had no duty warn
Mrs. Carroll of the allegedly dangerous condition because it was open and obvious]. [***]
***Mrs. Carroll had to prove that (1) Carnival had a duty to protect her from a particular injury;
(2) Carnival breached that duty; (3) the breach actually and proximately caused her injury; and (4)
she suffered actual harm. [c] With respect to the duty element, a cruise line like Carnival owes its
passengers “a ‘duty of reasonable care’ under the circumstances.” *** We begin by analyzing Mrs.
Carroll’s claim that Carnival negligently failed to warn her of a dangerous condition, and then evaluate
her claim that Carnival negligently failed to maintain a safe walkway. *** The question, therefore, is
whether a reasonable person would have observed the chair leg and appreciated the risk of walking
through the narrow passageway under the circumstances. [fn]
The district court concluded that Carnival had no duty to warn Mrs. Carroll of the dangers associated
with the walkway because the “placement of deck chairs on an open deck, on a clear and sunny
day, was an open and obvious condition.” In reaching this decision, the *1265 district court relied
on Mrs. Carroll’s deposition testimony that she could have se en the chair leg had she looked down.
The district court also relied on Mrs. Carroll’s testimony “that she did not walk behind her husband
because the area narrowed, as her husband explained, but rather, because ‘you do that.’” But there
was also evidence in the record—which the district court did not acknowledge—that Mrs. Carroll was
forced to walk behind her husband after passing the first lounge chair be cause the walkway narrowed.
Mrs. Carroll testified that, as a result, her view was blocked by her husband, who has a large profile, so
she could not see the foot of the lounge chair that she trippe d on nor around the curve of the walkway.
In our view, the district court erred by crediting some statements by Mrs. Carroll—which favored
Carnival’s open and obvious argument—over her other statements that she was forced to follow
behind her husband due the layout of the chairs and the narrowness of the walkway. Viewing the
facts in the light most favorable to Mrs. Carroll, as we must, the record supports an inference that a
reasonable person in Mrs. Carroll’s circumstances would not have observed the chair leg obstructing
her path. There is a ge nuine dispute of material fact as to whether the danger associated with the
walkway was open and obvious. After concluding that Carnival had no duty to warn Mrs. Carroll
because the alle gedly dangerous condition was open and obvious, the district court stated that it
need not decide whe ther Carnival had actual or constructive notice of the condition. It nevertheless
determined that Carnival lacked such notice. In reaching this conclusion, the district court again failed

262 | Duty As a Function of Foreseeability (Socratic Script)

to view the e vidence in the light most favorable to Mrs. Carroll and overlooked evidence in the record
from which a reasonable jury could find that Carnival had notice. [fn]
Evidence

that a ship owner has take
n corrective

action can establish notice

of a dangerous or

defective condition. See Guevara, 920 F.3d at 720–22 (holding that a warning sign alerting passengers
to “watch [their] step” was sufficient to create an issue of material fact on whethe r the cruise ship
had notice of the dangerous nature of the step down); Sorrels, 796 F.3d at 1288 (holding that a ship
employee’s testimony that the ship would sometimes post a warning sign on the pool de ck after it
rained was enough to create an issue of material fact on whether there was notice that the de ck could
be slippery when wet). Here, there is e vidence reflecting that Carnival took corrective me asures to
prevent people from tripping over the lounge chairs in the walkway on Deck 11.
*1266 For example, Mrs. Carroll presented evidence, including the testimony of one of Carnival’s
employees, that if the lounge chairs were arranged in the “lay-flat position,” rather than upright, they
would protrude further into the walkway—making the walkway even narrower. As a result, Carnival
required them to be set up in the upright position, and employees regularly patrolled the area to fix
the chairs. Specifically, one of Carnival’s pool deck supervisors, Viktor Symotiuk, testified that the
lounge chairs on De ck 11 were suppose d to be arranged in the upright position, and he was instructed
(and trained other employees that he supervised) to make sure that the chairs were not protruding
into or blocking the walkway. Although he testified that a lounge chair may be use d in the lay-flat
position if it is occupied, he also stated that “[y]ou never leave the chair unattended and flat in that
area.” He further acknowledged that “[i]f the lounge chair is se t on the passenger walkway, it would be
an obstruction[ ], it’s a reason why a person can get injured.”
The district court relied on the deposition of another pool deck supervisor, Denys Stavyts’ky, who
testified that that the chairs could be se t up in either the upright or lay-flat position. But the conflict
in the testimony of Mr. Symotiuk and Mr. Stavyts’ky demonstrates that there is a dispute of material
20

fact, making summary judgment inappropriate.

[***]

As in Guevara and Sorrels, a reasonable jury could view this testimony as evidence that Carnival has
taken corrective me asures—i.e., adopting a policy of keeping the chairs in-line and/or in the upright
position and instructing employees to ensure that they are not blocking the walkway—due to a known
danger. This is enough to withstand summary judgment on the issue of Carnival’s notice.
In sum, there were disputes of fact on both the obviousness of the condition and Carnival’s notice of
the danger. The district court therefore erred in granting summary judgment on Mrs. Carroll’s failure
to warn claim.

21

20. We note that Mr. Stavyts’ky also testified that hotel stewards were required to inspect that the chairs were arranged
properly every 15-20 minutes. See D.E. 44-3 at 45–46.
21. Mrs. Carroll also asserts that Carnival had notice of the dangerous condition because there were 12 separate instances
where passengers tripped and fell over lounge chairs aboard ships in the same class as the Carnival Pride. The parties
dispute whether these prior incidents were sufficiently similar to Mrs. Carroll’s accident to put Carnival on notice of the
risks associated with the walkway on Deck 11 of the Carnival Pride. We do not reach this issue because, as discussed
Duty As a Function of Foreseeability (Socratic Script) | 263

The district court appears to have concluded that Carnival was entitled to summary judgment on
both Mrs. Carroll’s failure to warn and negligent maintenance *1267 theories because of the open
and obvious nature of the condition. The district court reasoned that it need not reach notice after
determining that the condition was open and obvious, suggesting that its decision on the latter was
dispositive of the entire case. That initial conclusion, however, should not have ended the analysis for
Mrs. Carroll’s negligent maintenance claim.
As Mrs. Carroll correctly argues, Carnival may still be liable for maintaining a dangerous condition
even if the danger was obvious. The open and obvious nature of a dangerous condition negates liability
for failure to warn. *** We have not squarely addressed, however, whether the open and obvious
nature of a dangerous condition also bars liability for a maritime negligent maintenance claim. ***
Thomas J. Schoenbaum, Admiralty & Maritime Law § 5:11 (6th ed. 2018) (“[T]here is a duty to warn
passengers only of dangers that are not apparent and obvious. [The court concludes that the open and
obvious nature of a dangerous condition does not bar a claim against a shipowner for negligent failure
to maintain safe premises.]
Mrs. Carroll presented evidence creating a ge nuine dispute of material fact as to whether Carnival
negligently maintained an unsafe walkway. This included an affidavit from her expert, Mr. Jaques,
who opined that the width of the walkway would have be en below industry standards if the chairs
were in the lay flat position. This testimony is relevant in determining whether Carnival’s conduct fell
below the standard of care. See, e.g., Sorrels, 796 F.3d at 1282 (“[E]vidence of custom within a particular
industry, group, or organization is admissible as be aring on the standard of care in de termining
negligence … Compliance or noncompliance with such custom, though not conclusive on the issue
of negligence, is one of the factors the trier of fact may consider in applying the standard of care.”)
(citation and internal quotation marks omitted).
According to Mr. Jaques, the maximum amount of room possible in the walkway was 35–36 inches
if the lounge chairs were in the upright position and pushed up against the glass wall of David’s
Steakhouse. If the lounge chairs were in the lay-flat position, however, the width of the walkway
would be 28 ½ inche s if the chairs were only two inches from the glass, and between 23 and 25
inches if the chairs were approximately six inches from the glass. If some of the chairs were in the
lay flat position or pulled out a few inches, Mr. Jaques opined that the walkway would violate industry
standards, including but not limited to the ADA standards, which require “a clear width of not less
than 36 inches[.]” D.E. 49 at 37.
The record further reflects that there are disputes of material fact regarding whether the chairs were
in the upright or lay-flat position at the time of the accident, and whether the chairs were in line
or out *1270 of position. For example, both Mrs. and Mr. Carroll testified in their depositions that at
least some of the de ck chairs were in the lay flat position. Mrs. Carroll also testified, however, that
at the time of the accident the chairs “weren’t messed up.” In contrast, Mr. Carroll testified that the
chairs were not “orderly,” explaining that three or four of the chairs were “out of position” and “were

above, there is other evidence in the record establishing that there is a genuine dispute of material fact as to whether
Carnival had notice of the dangerous condition.
264 | Duty As a Function of Foreseeability (Socratic Script)

pulled back from the glass several feet[.]” He e xplained that the chairs “were in the walkway,” which
he described as being “more like an obstacle course,” and estimated that the width of the walkway was
about 20 inches.
A reasonable jury could find that at least some chairs were in the lay-flat position and out of order,
and thus conclude—in conjunction with Mr. Jaques’ testimony—that Carnival negligently maintained
an unsafe walkway that fell below industry standards. The district court therefore erred in granting
summary judgment on Mrs. Carroll’s negligent maintenance claim.
We reve rse the district court’s grant of summary judgment in favor of Carnival and remand for further
proceedings consistent with this opinion.
Note 1. While maritime law is applicable here, it adopts the general principles of tort law with which
you are gaining familiarity.
Note 2. Given that this is a case concerning Carnival’s duty to Carroll, why does the court discuss the
conduct of both parties, thus impliedly addressing breach of duty?
Note 3. The “open and obvious” defense pertains to premises liability as well as any claim arising from
a failure to warn. How obvious does a risk factor or danger have to be for it to be de emed “open
and obvious”? Do you think age, cognitive ability, education or language should matter to whether
someone understands risks to be “obvious”?
In a footnote omitted from the opinion, the court clarifies its open-and-obvious standard:
“We

have

repeatedly acknowledged and applied this reasonable person standard in

unpublished maritime de cisions. See, e.g., [c] Horne v. Carnival Corp., 741 F. App’x 607, 609
(11th Cir. 2018) (“A cruise line doe s not ne ed to warn passengers or make spe cial arrangements
for open-and-obvious risks…. In determining whether a risk is open and obvious, we focus
on ‘what an objectively reasonable person would observe and do[ ] not take into account the
plaintiff’s subjective perceptions.”) (internal quotation marks and citations omitted) [c].”
However, duty is determined as a question of law and the “open and obvious” defense is often used
to defeat a claim of duty. Are de terminations of “open and obviousness” better suited to fact-based
adjudication of the reasonable person’s understanding of the risk? Or should truly “open and obvious”
hazards be de alt with as a matter of law, in keeping with the categorical, higher-level determinations
of duty?
Note 4. How does the court deal with the plaintiff’s testimony relative to the reasons why she walked
behind her husband? What significance might that have socioculturally and legally?

Duties Determined by Type of Harm
Pure Economic Losses (no duty) vs. Pure Emotional Losses (duty in certain cases)
Duty As a Function of Foreseeability (Socratic Script) | 265

Purely Economic Losses. Despite the mode rn vie w that people have a general duty to refrain from
conduct that will foreseeably cause physical harm to others, there is no duty to refrain from conduct
that would cause purely economic losses. This is one way in which tort law has policed its scope.
By refusing recovery for losses that are purely economic, tort law forces parties to find alternatives
in private ordering such as contracts and home, auto, or business interruption insurance. These
alternatives are de emed better suited than tort law to protect against certain kinds of harms and risks.
Consider whether these private ordering alternatives serve e qually well all entities potentially harmed
by tortious conduct.
Purely Emotional Losses. At common law, recovery in tort law was generally unavailable or e xtremely
limited for losses that were purely emotional. This rule has been eroded over time, as is reflected
by the introduction of torts that make se vere emotional distress a cognizable injury under certain
circumstances, namely, IIED, NIED, or Negligent Infliction of Emotional Distress or both. You have
already learned about the challenges of prevailing with IIED claims, in Module 2. While in most
jurisdictions plaintiffs can recover for purely emotional losses under negligence, the challenges for
plaintiffs are usually even greater than those posed by IIED claims.
Most courts are reluctant to allow recovery for NIED, for several reasons. First, emotional distress
without any accompanying physical harm is usually ephemeral and may be difficult to measure or
prove. Second, the scope of liability seems potentially limitless: if an accident causes a gruesome
injury, the tortfeasor could potentially be liable to a large number of people who witnessed it if all
bystanders were eligible to sue for the distress they suffered. Third, there is a concern that NIED
claims may reflect attempts to use private insurance policies strategically. Most insurance policies
have e xclusions for intentional torts but include negligence claims. Thus, by characterizing conduct
causing an emotional injury as negligent rather than intentional, a plaintiff could tap into significant
resources that might not otherwise be available.
The rules that shape NIED vary greatly by state, yet they consistently create hurdles or outright bars
for plaintiffs. Among the many different approaches employed by the states, four common categories
can be identified: (1) states that follow some version of the “physical impact rule”; (2) states that require
that plaintiffs have be en in the “zone of danger”; (3) states that apply the “relative bystander” rule;
(4) states that apply foreseeability analysis and limit recovery to when a defendant ought to have
anticipated causing emotional distress to people like the plaintiff.
The physical impact rule bars recover for claims of NIED based on witnessing negligent injury to
another unless the plaintiff has suffered a physical impact or injury in the same incident. The impact
itself could be minor but it suggests that the plaintiff was close and directly affected by the tortfeasor’s
injury of the other person.
The zone of danger rule permits recovery only when the plaintiff was in the zone of physical danger
created by the defendant’s tortious conduct, and this may be defined in terms of either proximity
in space or time closeness of familial connection or both. Proximity may be use d as a term of art,
therefore, that means not just physically nearby, but also close in terms of relationships the law is
especially intended to protect.

266 | Duty As a Function of Foreseeability (Socratic Script)

The relative bystander rule requires that the bystander whose claim depends on having witnessed
the injury to another be related in some way, whether through marriage or other familial relation. It
may also require proximity in space and or imme diacy in time such that the claim depends on having
been near to and aware of a loved one or family member’s suffering while that person experiences the
physical injury caused by the defendant.
These limits—physical impact, proximity within the zone of danger, and foreseeability—significantly
narrow the scope of the tort. They do so by using the element of duty as a gatekeeping mechanism.

Contreras v. Carbon County School District # 1 et al, Supreme Court of
Wyoming (1992)
(843 P.2d 589)
This case involves a claim for damages resulting from personal injury caused by a playground accident
at Pershing Elementary School. Appellants James Contreras, Brenda Contreras and Odorico Contreras
appeal the order granting judgment on a jury verdict for defendants-appellees, and denying their
motion for a new trial. At issue is whe ther the trial court properly granted partial summary judgment
on appellants’ negligent infliction of emotional distress claim [***]
We affirm. [***]
January 25, 1989, was a cold, blustery day in Rawlins, Wyoming. The weather that morning did not
keep about 150 to 200 children from gathering, as they often did, outside Pershing Elementary School
to play in the school playground before school be gan. The children were supervised by two school
employees, appellees Belinda Wells and Kathleen Shamion. The playground at Pershing Elementary
was divided into two segments. The west end, with swings and other playground equipment, was
where the little children played together. The e ast, or “high activity” end, was where the olde r children
played. This segregation of the playground was established mostly by convention and the tendency of
children to play with those their own age. There was no physical barrier of any sort between the highactivity area and the area to the west of it where the younger children played, although the playground
supervisors did try to keep the younger children out of the high-activity area.
In the high-activity area there was a football field marked out in white line s. On the morning in
question, several fifth-grade boys were playing their daily game of football on the field. They had been
instructed to keep within the white line s. One of the boys, Chuck Juare, was running backwards to
catch a pass when he collided with appellant James Contreras. James was then seven years old and in
the first grade. James was knocked off his feet, and Chuck fell on top of him. Another fifth-grade boy,
Nick Armijo, was shadowing Chuck in the game. After Chuck fell, Nick tripped over Chuck and James
and fell on top of them.
Mrs. Wells, Mrs. Shamion, and the school principal, Robert Johnson, soon arrived at the spot where
James Contreras lie

crying and in pain. James repeatedly told Johnson that his leg hurt. After

ascertaining that the child had no back, ne ck or head injuries, Johnson decided to take him indoors
Duty As a Function of Foreseeability (Socratic Script) | 267

because of the cold. He carried James about 200 feet, first into the school building and then into the
school office. Johnson placed James on a nurse’s cot in the office. Mr. Johnson’s secretary called James’
mother, appellant Brenda Contreras, to inform her that her son had been hurt. Mrs. Contreras drove
quickly to the school. When she got out of her car in front of the school building, she could hear her
son crying. She followed the sound of crying to the office, where she discovered her son lying on the
cot in intense pain. His crying disturbed her so much that soon she too was crying. Mr. Johnson asked
Mrs. Contreras whether she wanted an ambulance called. She said that she did.
When the paramedics arrived, they cut the leg off James’ jeans to observe his injuries. They discovered
that James had an inverted right femur, which is a very painful fracture of the longest bone in the
human body. The femur in James’ leg was *592 visibly twisted toward the other leg. Mrs. Contreras
was told that her son’s leg was broken. James was taken to the hospital in an ambulance, where he was
fitted with a body cast which he wore subsequently for two and one-half months.
James, his mother and his father all filed suit against Carbon County School District No. 1, Mrs.
Wells, Mrs. Shamion, Robert Johnson, Chuck Juare and Nick Armijo. In addition to claims for medical
expenses, home health care

provided, and compensation for James’ pain and suffering, Brenda

Contreras requested in the complaint damages for the emotional distress she incurred at seeing her
son in severe pain and worrying that he might be permanently deformed by the injury. The trial court
entered judgment against Mrs. Contreras on her emotional distress claim. Nick Armijo was never
served with process, and the claim against Chuck Juare was dismissed after he reached a settlement
with the plaintiffs. The remainder of the claims were allowed to go to the jury. After trial, the jury
returned a verdict in favor of the defendants on all claims.
[***][A]ppellants challenge the trial court’s finding that an emotional distress claim is precluded by
our decision in Gates v. Richardson, 719 P.2d 193 (Wyo.1986).
[***] In Gates v. Richardson, 719 P.2d 193 (Wyo.1986), we recognized the tort of negligent infliction of
emotional distress. In order to avoid burdening our court system with an overbroad theory of liability,
we placed limits on possible recovery under that cause of action. We held that only those plaintiffs
could recove r: (1) whose kinship to the accident victim would permit them to bring a wrongful death
action; (2) who observed the infliction of serious bodily harm or death, or observed the serious bodily
harm or death shortly after its occurrence but without material change in the condition or location of
the victim; and (3) whose loved one did, in fact, sustain death or “serious bodily injury” as defined in
the Wyoming Criminal Code. Gates, 719 P.2d at 198–99. The trial court granted summary judgment here
on appellants’ failure to me et the se cond element of the Gates test, the immediacy of the observation.
Wyoming is one among a small number of states which allows recovery for the emotional distress
a plaintiff experiences when she observes a loved one seriously injured or dead after the injury has
actually occurred. [c] Our immediacy test allows some time to e lapse be twee n the time of injury and
the time of observation. Once the victim’s condition or location has materially changed, however, the
moment of crisis for which recovery is allowed is deemed to have passe d, regardless of the brevity of
time which has elapsed since the accident. Shock or emotional distress may occur after this point, but
it is no longer compensable.

268 | Duty As a Function of Foreseeability (Socratic Script)

If this rule se ems harsh, we must point out that Wyoming follows a more liberal course than do
many jurisdictions, including California, whose landmark case of Dillon v. Legg, 68 Cal.2d 728, (1968)
so heavily influenced our adoption of the modern version of the tort. Gates, 719 P.2d at 195. While the
California Supreme Court’s position in Dillon was at the forefront of the law, that court, refining Dillon,
recently rejected an emotional distress claim by a woman who arrived at an accident scene and found
her bloody, unconscious son lying in the roadway, because she did not actually witness the accident.
Thing v. La Chusa, 48 Cal.3d 644 (1989). This is a much harsher result than our rule requires. In fact,
the dissent in Thing cited language from Gates as an example of the more liberal rule that California
should have adopted. Thing, 257 Cal.Rptr. at 892–93 [***].
Our broader immediacy rule, which allows the plaintiff to recover if she observes the injury shortly
after it occurs without material change
Massachusetts case

in the

attendant circumstances, was adopted from the

of Dziokonski v. Babineau, 375 Mass. 555 (1978). Gates, 719 P.2d at 199.

Massachusetts expanded the Dziokonski rule e arly on to include emotional distress claims predicated
on viewing the injured person at the hospital rather than at the scene. Ferriter v. Daniel O’Connell’s
Sons, Inc., 381 Mass. 507 (1980). On this point, we must de cline to follow the Massachuse tts rule. The
shock received on seeing an injured loved one in a hospital setting, or lying on a cot in a principal’s
office, is of a different quality than coming upon him or her at the scene of the accident. In our view,
Ferriter over-emphasized the factor of whether chronological time had elapsed since the accident and
under-emphasized the circumstantial factors under which the observation was made.

22

Turning to the circumstances of this case, Mrs. Contreras did not observe the infliction of her son’s
injuries. She did see him in pain shortly after the accident. However, he had be en removed to the
principal’s office and was lying on a cot at the time. There had, therefore, been a “material change”
in his location sufficient to mitigate the shock of the accident. While it is true that seeing her son’s
injuries must have be en extremely distressing to Mrs. Contreras, a victim’s loved ones are not entitled
to recover for the emotions created by every shocking or upsetting injury to the victim, only to those
which fall within the limitations of the cause of action as we have recognized it. See Thing, 257 Cal.Rptr.
at 879–80. We therefore hold that Mrs. Contreras did not, as a matter of law, state a claim for negligent
infliction of emotional distress because she did not obse rve the accident or observe the victim in
substantially the same location and condition as when the accident occurred. [***]
Note 1. Descriptively, what facts would have ne eded to change in order for Mrs. Contreras to recover
for the shock and upset of her son’s injuries?
Note 2. Normatively, do you think the court draws the right line in denying recovery on these facts?
Would it matter to your analysis if her son had died versus being injured?
Note 3. What consequences can you imagine to a rule in which the parents of children severely injured
at their (public) schools can sue over their emotional distress pertaining to those injuries even when
not present? Might some so-called “helicopter” parents begin attending recess? Would legislatures be

22. Moreover, we note that in recent years the Massachusetts courts have shown marked reluctance to further broaden the
horizons of emotional distress claims. [Collecting cases]
Duty As a Function of Foreseeability (Socratic Script) | 269

forced to fund tort liability at schools (and might that lead to some legislatures’ defunding schools to
a certain extent)? Might schools be optimally incentivized to maintain safe playgrounds and supervise
play times? Are schools likely to achieve a balance that makes children, parents, and legislators happy?
Note 4. Physical Impact Rule, A Deeper Dive. At common law, the general rule was that claims for
emotional distress could not succeed unless they were accompanied by physical harms. Thus the
first hurdle to the creation of a claim for NIED was the abrogation or modification of the “physical
impact rule.” In Falzone v. Busch, 45 N.J. 559, 561 (1965), Mabel Falzone, was in the car next to her
husband, parked lawfully, when her husband was struck by the defendant’s car veering negligently
across the highway. She perceived it and it came “so close to plaintiff as to put her in fear for her
safety.” Although it had not struck her and thus her claim did not satisfy the physical impact rule, the
court permitted recovery on the grounds that such impact had been possible. It was thus reasonable
to fear the impact and credit the ensuing emotional distress. In Portee v. Jaffee, a mother never feared
for her own physical harm or impact but suffered emotional distress when her child died tragically
and slowly before her eyes. The trial court, following Falzone, ruled against the plaintiff since she had
faced neither physical harm nor probable or imminent contact. The Supreme Court reversed:
“Plaintiff’s seven-year-old son, Guy Portee, resided with his mother in a Newark apartment
building. Defendants Edith Jaffee and Nathan Jaffee owned and operated the building. On the
afternoon of May 22, 1976, the youngster became trapped in the building’s elevator between
its outer door and the wall of the elevator shaft. The elevator was activated and the boy was
dragged up to the third floor. [fn] Another child who was racing up a nearby stairway to beat
the elevator opened it, saw the victim wedged within it, and ran to seek help. Soon afterwards,
plaintiff and officers of the Newark Police Department arrived. The officers worked for four and
one-half hours to free the child. While their efforts continued, the plaintiff watched as her son
moaned, cried out and flailed his arms. Much of the time she was restrained from touching him,
apparently to prevent interference with the attempted rescue. The child suffered multiple bone
fractures and massive internal hemorrhaging. He die d while still trapped, his mother a helpless
observer.” Portee v. Jaffee, 84 N.J. 88, 91 (1980)
As the court notes in Contreras, California and Massachusetts followed slightly different trajectories,
but all courts facing such claims have sought to find a balance be tween permitting some without
opening the floodgates to “trivial” claims. Are the factors you see in the analysis thus far persuasive?
Note 5. Critiques of NIED’s Various Tests. Many have criticized elements of the various tests for NIED.
For instance, they maintain that the “Relative Bystander rule” provides no relief for bystanders who
witness the suffering of non-familial loved ones even though it is often far more distressing to lose
(or witness injury to) a beloved friend than it might be to e xperience the same with respect to an
estranged family member or long-lost distant cousin. Nonetheless, courts that apply the test have
tended to do so in a rigid, formalistic way.
Should courts adopt a rule that reflects the growing awareness of the social importance of friendships
in society? See e.g. https://www.theatlantic.com/family/archive/2020/10/people-who-prioritizefriendship-over-romance/616779/

270 | Duty As a Function of Foreseeability (Socratic Script)

Other critics lament the rather technical (and sometimes trivializing) nature of the “proximity” and
“immediacy” requirements applied as part of the zone of danger test (and sometimes also under the
relative bystander test, which may require “contemporaneous presence”). For instance, if a person
were present but sleeping through an injury, or looking away from the scene at the precise moment
of injury, some courts would deny recovery (depending on the precise nature of the claim).
How much should legal technicalities matter in delineating the scope of liability for the negligent
infliction of losses that are purely emotional? Do the tests’ traditional limits reflect outdated notions
of what it means “to be present”? How should they be applie d in our increasingly “virtual” era? Would
it satisfy the proximity requirement, for instance , to be on the phone with a family member who
was dying in an accident negligently caused by the defendant? (Courts have come out differently
on this question.) Would being on FaceTime

or Zoom “count,” that is, satisfy the

proximity or

contemporaneous presence requirements? How about if the plaintiff witnessed harm to their loved
one via livestream from a “nanny cam” in the plaintiff’s home? Recently, an appellate case in California
answered in the affirmative.
Initially, the trial court ruled that the Ko family could not state a cause of action for NIED after
witnessing their in-home caregiver, Thelma Manalastas, abusing their disabled son while the parents
were out of the home. They observed the abuse from their smartphone, which captured video and
audio on their nanny cam (a device of some sort that records activity in a child’s room or elsewhere in
a home, designed to surveil childcare providers). The Kos brought suit against Manalastas for battery,
assault and negligence for their son (who died during the pendency of the litigation) and on their
own behalf for NIED, suing Manalastas’ employer, Maxim Healthcare. Since the parents weren’t home
during their child’s abuse, the trial court held that they failed to satisfy California’s requirement that
a bystander be both present at the scene of the injury-producing event and aware that it is causing
injury.
On appeal, the Kos argued that their “virtual presence” during their son’s abuse should satisfy the
contemporaneous presence element required in California and the court agreed, reversing the trial
court’s decision. Ko v. Maxim Healthcare Servs., Inc., 58 Cal. App. 5th 1144, 1146–47, (2020), as
modified (Jan. 14, 2021), review denied (Apr. 21, 2021). The Supreme Court’s reasoning was grounded in
an awareness of technological change: “In the three de cades since the Supreme Court [of California]
decided Thing [v. La Chusa (1989) 48 Cal.3d 644, 668, the controlling precedent], technology for
virtual presence has de veloped dramatically, such that it is now common for families to experience
events as they unfold through the livestreaming of video and audio.” Id. at 1147. The court rejected
the defendant’s attempts to downplay the significance of these social and technological changes in a
thoughtful opinion that is worth quoting at length:
Maxim argues that “remote surveillance is nothing ne w, nor is watching events happening live
with video and audio,” and contends that “[i]ncreased convenience does not mean we are any
more able to be present in places where our bodies are not than we were in 1989.” Maxim and
Manalastas contend that technology allowed live broadcasts decades ago, pointing to the live
broadcast of the fatal shooting of Lee Harvey Oswald in 1963, the 1986 televised explosion of the
space shuttle Challenger, and the use of closed-circuit television in courtrooms prior to Thing.
But the

Supreme Court in 1989 could not have

reasonably anticipated the

te chnological

Duty As a Function of Foreseeability (Socratic Script) | 271

advances that now allow parents (and other family members) to have a contemporaneous
sensory awareness of an event causing an injury to their child while not in physical proximity
to the child.
Certainly live television and remote video surveillance

e xisted in 1989, but numerous

technological, regulatory, and commercial developments in image capture (such as an Internetenabled nanny cam), transmission (including the streaming of audiovisual data over the Internet
and mobile data networks), and reception (such as on pocket-sized smartphones with high
resolution screens) were ne cessary to create a world where parents could contemporaneously
observe their at-home child while attending a basketball game. Indeed, the ubiquity of home
surveillance systems and videoconferencing applications since the advent of Internet-enabled
smartphones has manifestly changed the manner in which families spend time together and
monitor their children. (See, e.g., Riley v. California (2014) 573 U.S. 373, 385 [“These cases
require us to de cide how the se arch incident to arrest doctrine applies to modern cell phones,
which are now such a pervasive and insistent part of daily life that the proverbial visitor from
Mars might conclude the y were an important feature of human anatomy. A smart phone of the
sort taken from [the defendant] was unheard of ten years ago; a significant majority of American
adults now own such phones. [c] [Such] phones are base d on technology nearly inconceivable
just a few decades ago ….”].)
In various areas of the law affecting traditional conceptions of physical presence, the courts
have be en called upon to interpret longstanding precedent in light of new technologies. [***]
Where plaintiffs allege the y were virtually present at the scene of an injury-producing event
sufficient for them to have a contemporaneous sensory awareness of the e vent causing injury to
their loved one, they satisfy the se cond Thing requirement to state a cause of action for NIED.
Just as the Supreme Court has ruled a “plaintiff may recover based on an event perceived by
other senses so long as the event is contemporaneously understood as causing injury to a close
relative” [c] so too can the Kos pursue an NIED claim where, as alleged, they contemporaneously
saw and heard Landon’s abuse, but with their senses technologically extended beyond the walls
of their home.
Here, as alleged, the Kos were virtually present through modern technology that streamed the
audio and video on which they watched Manalastas assaulting Landon in real time, and thus
“personally and contemporaneously perceive[d] the injury-producing event and its traumatic
consequences.” (Thing, supra, 48 Cal.3d at p. 666.) Based on these allegations, the Kos have
stated facts sufficient to constitute a cause of action for NIED. (Thing, supra, 48 Cal.3d at pp.
666, 668.)
The judgment is reversed. The matter is remanded with directions to the trial court [***]. The
Kos are to recover their costs on appeal. Id. at 1157–60.
Based on what you have le arned about NIED so far, what do you think of this reasoning, descriptively
and normatively?
Note 6. Culpability. Negligent infliction of emotional distress differs from IIED in having a much lower
272 | Duty As a Function of Foreseeability (Socratic Script)

conduct standard: it requires only carelessness, not intentional action. Notwithstanding case law to
the contrary, extreme and outrageous conduct is not an essential element of a cause of action to
recover damages for negligent infliction of emotional distress. Taggart v. Costabile, 131 A.D.3d 243, 255
(Sup. Ct. App. Div. 2d Dept., NY, 2015).

Summary of Types of Duty:
• General Duty: the modern rule, applicable in most cases: everyone has a duty to refrain from
conduct that will cause foreseeable harm
• Duty as a Function of Foreseeability: a duty arises when there is harm to a foreseeable person
or a foreseeable harm that can be created or increased through one’s actions (Walls v. Oxford
Management and Tarasoff; Palsgraf though there the court found no duty)
• No Duty: there is no duty to “rescue” or take action to help others relative to harms one didn’t
create or risks one didn’t increase (Harper v. Herman; Sidwell v. McVay)
• Duty Based on Relationship or Undertaking: a duty arises when there is a special relationship
between parties (the special relationship may be contractual, familial or social (recall wingman
liability as in Farwell v. Keaton); or the special nature of the therapist’s work as in Tarasoff); or
when a party volunteers (a “gratuitous undertaking”) and thus creates a duty
• Duties of Common Carriers or Innkeepers: special duties attach to the activities of common
carrier and innkeepers because of the control and power they exercise over the passengers or
customers temporarily in their custody (Bullock, Maison)
• Duty Related to Premises Liability: owners and possessors of land usually owe a duty of care
towards entrants on their land but what that requires of them depends on the jurisdiction
(Carroll v. Carnival); the majority of jurisdictions refer to the status of the entrant to specify the
level of care required whereas the minority approach applies “reasonableness” (Rowland v.
Christian)
• Duty Determined by Type of Harm: in limited cases involving purely emotional harms, courts
will determine whether a duty exists based on a restrictive set of factors varying by jurisdiction
(Contreras v. Carbon County); there is no duty to compensate for purely economic losses caused
by one’s conduct

Check Your Understanding – Set 21

Duty As a Function of Foreseeability (Socratic Script) | 273

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=54#h5p-63

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=54#h5p-64

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=54#h5p-65

This was a challenging question since it asks you to read three mini fact patterns and also the
Restatement factors and then apply those factors to the fact patterns. The structure of the inquiry is
also challenging: if the factors applied, then duty would exist, meaning the “no duty default rule” would
be negated. There’s some challenge just in conceptualizing an exception to a default rule, all on its own.
There is an additional challenge in the fact that premises liability cases often formulate liability in terms
of whether a duty exists when in fact the true legal question is whether the defendant had a duty to do a
particular thing on these facts which sounds a great deal like breach analysis. Recall that the limited duty
cases often do present hybrid analysis of just this kind and may ultimately present a jury question, just as
Farwell v. Keaton, above, demonstrated.

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=54#h5p-66

274 | Duty As a Function of Foreseeability (Socratic Script)

16. Negligence: Breach
The Standard of Care
The standard for whether an actor was negligent is reasonableness: was the conduct in question
reasonable unde r the circumstances? The law asks what a reasonable person would do under the
circumstances, as a question of fact that varies based on the facts of a given case. The reasonable
person standard is set out as an objective standard, asking what the hypothetical “reasonable person”
would have done or should have known under the circumstances. This objective standard stands in
contrast with a subjective standard which would ask what this defendant actually thought, knew or
intended on these circumstances.
Generally, look for a precaution that could have be en taken and that wasn’t. If it wasn’t, perhaps that
was reasonable be cause the precaution was too costly or prohibitive; perhaps it would have required
eliminating socially valuable conduct in order, effectively to reduce the risks to zero. Introducing that
high a level of precaution to prevent risks deemed merely possible, not likely or probable, is suboptimal
and not the standard tort law seeks to achieve.
Considering a representative

formulation of negligence

is an instructive

point of departure

for

understanding what constitutes breach of the duty of care.
Wisconsin Jury Instruction 1005 Negligence: Defined, states “A person is negligent when he
fails to exercise ordinary care. Ordinary care is the care which a reasonable person would use
in similar circumstances. A person is not using ordinary care and is negligent if the person,
without intending to do harm, does something or fails to do something that a reasonable
person would recognize as creating an unreasonable risk of injury or damage to a person or
property.”
Using a jury instruction allows students to see how courts and juries are intended to arrive at a
determination of negligence. However, this general formulation raises many questions.

Questions or Areas of Focus for the Readings:
• What sorts of circumstances is the reasonable person expected to protect against?
• What kinds of conditions foreseeably lead to preventable injuries or, conversely, excuse lapses in
conduct, making them unreasonable, versus reasonable?
• Who is the reasonable person by which we measure all of this tort liability?
• What does the reasonable person standard look like at different points in time?
• What kinds of evidence will be necessary to prove up the answers to these various questions?
Negligence: Breach | 275

• What happens when evidence is unavailable or missing?
The ne xt few cases deal with how to define the standard of care and identify its breach; how to apply
the reasonable person standard; and how to approach challenges in proving breach.

Blyth v. Birmingham Waterworks Co., Court of Exchequer (1856)
(11 Exch. 781, 156 Eng. Rep. 1047)
Defendants had installed water mains in the street, with fire plugs at various points. The plug opposite
the plaintiff’s house sprung a le ak during a severe frost, because the connection between the plug
and the water main was forced out by the e xpansion of freezing water. As a result, a large quantity of
water escaped through the e arth and into plaintiff’s house, causing damage. The apparatus had been
laid down 25 years ago, and had worked well during that time. The trial court left the question of
defendant’s negligence to the jury, which returned a verdict for plaintiff. Judgment was entered on the
verdict, and defendant appealed.
ALDERSON, B. I am of opinion that there was no evidence to be le ft to the jury. The case turns
upon the question, whether the facts proved show that the defendants were guilty of negligence.
Negligence

is the

omission to do some thing which a reasonable

man, guide d upon those

considerations which ordinarily regulate the conduct of human affairs, would do or doing something
which a prudent and reasonable man would not do. The defendants might have be en liable for
negligence, if unintentionally, they omitted to do that which a reasonable person would have done,
or did that which a person taking reasonable precautions would not have done. A reasonable man
would act with reference to the average circumstances of the temperature in ordinary years. The
defendants had provided against such frosts as experience would have le d men, acting prudently, to
provide against; and the y are not guilty of negligence, because their precautions proved insufficient
against the effects of the e xtreme severity of the frost of 1855, which penetrated to a greater depth
than any which ordinarily occurs south of the polar regions. Such a state of circumstances constitutes
a contingency against which no reasonable man can provide. The result was an accident for which the
defendants cannot be held liable. Verdict to be entered for the defendants.
Note 1. How do you formulate the rule in this case? If you’re struggling to zero in on it, cast your
mind back your to introduction to negligence. Can you use the rationale behind the negligence
calculus—tort law does not require that risks be completely eliminated, only optimized in light of
necessary precautions and likely risk—to shape a rule here?
Note 2. How far should this rule e xtend? If someone moves to the Pacific Northwest and fails to take
precautions against rainy weather conditions, their very first days might excuse a lack of awareness
of their environs, but at some point, it ceases to be reasonable not to learn how to navigate your daily
terrain and climate. Similarly, if someone moves to a mountain town and fails to learn how to drive in
the ice and snow, it’s clearly unreasonable after some period of time. Does it matter what time of year
they move? Should it be the same amount of time if the y arrive in July versus January? What sort of
276 | Negligence: Breach

rule would capture that reasoning? How far should it extend? Should the same rules apply to tourists
visiting from other cultures and climates? Is it unfair not to tailor the reasonable person standard
under certain circumstances? In whose vie w would it be unfair? Is it inefficient if we do tailor the
reasonable person standard, that is, make it subjective to the particular defendant?
Note 3. Blyth was reportedly the first case in which the “reasonable person” framing appeared. What
accounts, do you suspect, for the shift in the later cases, in America, to the term “reasonable man”
instead of reasonable person?

Expand On Your Understanding – Storm Hypothetical

Blyth’s reasoning proceeds as though it were always evident what sorts of precautions might be
reasonable or necessary, and thus assumes it may be clear whether a weather event is an extreme
contingency. Is an extreme weather event, like a typhoon, one against which parties can be expected to
take reasonable precautions? At what point does extreme weather become an “act of God” or “force
majeure” that may change the legal status of rights and duties owed to parties affected by it?
In Nissan Motor Corp. in Guam v. Sea Star Grp. Inc., 2002 Guam 5, (Guam Apr. 9, 2002), several cars
owned by plaintiff on a tropical island and stored adjacent to the defendant’s land were damaged during
a violent storm in which wind gusts reached 125-150 mph.
“Nissan sought recovery for fourteen vehicles that were damaged during Typhoon Paka [in
Guam]. The vehicles were among several hundred new vehicles stored by Nissan on a lot adjacent
to property owned by Sea Star. Sea Star maintained a twenty-seven-foot aluminum storage
container on its property that was used as a satellite office. In preparing for the arrival of the
typhoon, Sea Star attempted to secure the container by moving it up against a cyclone fence and
pinning it to the ground by bending four rebar stakes around the container’s edges. During
Typhoon Paka’s passage, the container was picked up and carried approximately 130 feet. It
eventually landed on the fence separating Nissan and Sea Star’s lots, coming to rest against the
rear of five Nissan vehicles. Nissan also alleges that nine other vehicles suffered damage from the
container’s flying debris.
Nissan filed suit against Sea Star arguing that Sea Star negligently failed to secure its property
and that this negligence resulted in the damage to Nissan’s property. Id. at 12
Under Blyth, what result? Recall its core reasoning: “A reasonable man would act with reference to the
average circumstances of the temperature in ordinary years” and its reference to a “state of
circumstances [that] constitutes a contingency against which no reasonable man can provide.”

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=56#h5p-67

Negligence: Breach | 277

Note 4. The Negligence Calculus. While there is no magic equation or formula that can yield a
conclusion of negligence, there is a predictable policy balancing that must take place. The negligence
calculus (sometimes referred to as the “Hand formula”), asks whether the burdens of precaution in
a given situation outweigh the likelihood of risks occurring that will cause serious harm. In U.S. v.
Carroll Towing, 159 F.2d 169 (2d Cir. 1947) Judge Le arned Hand was considering damage to barges
occurring when a negligently secured barge and an absent bargee’s conduct caused damage to se veral
other barges and their cargo, including causing a barge to sink. The harbor was busy and crowded with
World War II barge traffic, and Judge Hand’s analysis sought to contextualize the fact that the bargee
had left his barge unattended in light of the risks attendant on that action during that particular time
and place.
“[T]here is no general rule to de termine when the absence of a bargee or other attendant will
make the owner of the barge liable for injuries to other vessels if she breaks away from her
moorings. [***] It becomes apparent why there can be no such general rule, when we consider
the grounds for such a liability. Since there are occasions when every vessel will break from her
moorings, and since, if she does, she becomes a menace to those about he r; the owner’s duty, as
in other similar situations, to provide against resulting injuries is a function of three variables:
(1) The probability that she will break away;
(2) the gravity of the resulting injury, if she does;
(3) the burden of adequate precautions.
Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability
be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L
multiplied by P: i.e., whether B less than PL.
Applied to the situation at bar, the likelihood that a barge will break from her fasts and the
damage she will do, vary with the place and time; for example, if a storm threatens, the danger is
greater; so it is, if she is in a crowded harbor where moored barges are constantly being shifted
about. On the othe r hand, the barge must not be the bargee’s prison, even though he lives
aboard; he must go ashore at times. We ne ed not say whether, even in such crowded waters as
New York Harbor a bargee must be aboard at night at all; it may be that the custom is otherwise,
[***] and that, if so, the situation is one where custom should control. We le ave that question
open; but we hold that it is not in all cases a sufficient answer to a bargee’s absence without
excuse, during working hours, that he has properly made fast his barge to a pier, when he
leaves her. In the case at bar the bargee left at five o’clock in the afternoon of January 3rd, and
the flotilla broke away at about two o’clock in the afternoon of the following day, twenty-one
hours afterwards. The bargee had be en away all the time, and we hold that his fabricated story
was affirmative e vidence that he had no e xcuse for his absence. At the locus in quo—especially
during the short January days and in the full tide of war activity—barges were being constantly
‘drilled’ in and out. Certainly it was not beyond reasonable e xpectation that, with the ine vitable
haste and bustle, the work might not be done with adequate care. In such circumstances we
hold—and it is all that we do hold—that it was a fair requirement that the Conners Company
should have a bargee aboard (unle ss he had some e xcuse for his absence), during the working
hours of daylight. United States v. Carroll Towing Co., 159 F.2d 169, 173–74 (2d Cir. 1947)
278 | Negligence: Breach

Judge

Hand’s opinion exemplifies the fact-sensitive

balancing of negligence

de terminations. He

highlights the importance of a bargee’s remaining present, especially if a barge is “in a crowded
harbor” and “a storm threatens.” However, the costs of a bargee’s presence should not be so great
as to make “the barge… the bargee’s prison.” He acknowledges there may be e xcuses for a bargee’s
absence and dismisses that possibility here given the 21-hour absence of this bargee on facts that were
uncertain, possible a “fabricated story” that may have be en covering up for the bargee’s going on an
unauthorized bender ashore. In his attentiveness to the factual specificity of the context, Judge Hand
demonstrates particularization that is characteristic of the common law of torts. Again, Judge Hand’s
formula, “B < PL” is not an equation that will always produce a finding of negligence merely because
the burdens of precaution are lower than the probability of harm multiplied by the se verity of the loss.
However, it provides insight into how many courts approach the questions of negligence or instruct
juries to do so. It may be difficult to overcome the intuitions that arise upon a showing that the
burdens of precaution were low but not taken, even when risks threatened and those risk portended
significant possible harm. Inversely, if the precautions were very costly—such as asking epileptic
drivers to cease driving altogether—even when the risks were low—such as when the epileptic drivers
faced very low risks of seizure, it may be rather more difficult to argue persuasively in favor of finding
negligence in the e vent that harm does result. In some sense, the negligence calculus reflects little
more than common sense balancing of risks with predictions of their possible impact.
Brake repair hypothetical 1. Imagine that you learn that a vehicle you own requires brake repairs.
These repairs are

not costly, and your mechanic informs you that they should be undertaken

immediately because the risk that the brakes will not function is high. Since you own a vehicle, it is
safe to assume you are aware of the importance of braking and the significant safety risks attendant
on being unable to brake properly. Under the negligence calculus, the burdens are not very high (your
mechanic’s quote is “not costly”) but the probability of harm is high. While we can’t know precisely
how severe the loss will be (will you drive the car at high speeds? On dangerous, hilly, or slick terrain?),
the calculus is tending towards a conclusion of negligence if the driver fails to get the brakes repaired.
Again, this likely mirrors your intuitions as you consider the options before you.
Brake repair hypothetical 2. Now imagine
significance

of the

that the

brake

repairs are

very costly. Given the

harm associated with failures to brake, this might not change

much in the

negligence calculus. It might be unreasonable to drive a car even if you can’t afford the repairs to it
right away. The law reasonably expects you to refrain from engaging in conduct with a high level of
risking harm to others.
Brake repair hypothetical 3. Same facts as in #2, except that you use the car to transport someone a
short distance to the hospital during a situation in which they face a sudden and unexpected health
emergency whose complications cannot await eve n the time ne eded to call an ambulance. Is your
assessment shifting as the risk of harm by possible brake failure changing as additional, possibly
countervailing pressures enter the picture? Or do alternatives (a friend’s car? A ride share or taxi?)
seem plausible and preferable?
Brake repair hypothetical 4. Imagine that the me chanic has stated that the repairs are moderately
costly, neither cheap nor exorbitant. However, the likelihood that they will malfunction is small. It
is possible, but not probable, that the brakes will fail before your next oil change in a few months.
Negligence: Breach | 279

Now you may have

different intuitions depending on how the

costs of the

repairs match your

socioeconomic capacity, the regularity with which you need your car and your uses for it, your
tolerance for risk, and the counsel of your mechanic overall. Does she conclude with “I’d go ahead and
get it done now” or “you’d probably be fine waiting just a little longer?”
Negligence law is filled with small factual details that involve awareness and assessment of risk as
well as balancing a constellation of considerations. You don’t need a car to follow the hypotheticals
above; most of us engage in this kind of risk prediction and management all the time in our daily lives,
if on a smaller scale. Indeed, this is probably the main reason why the jury’s everyday experience is
thought to be the proper sort of expertise for determining negligence. Many doctrines have arisen
that purport to guide the se intuitions and label them so that courts can imbue them with authority for
subsequent courts to recognize and follow or distinguish. How useful is it to categorize and label this
kind of thinking? To what extent might human intuitions be shared or divergent as applied to various
factual scenarios or as manifested in the case law of particular jurisdictions? Consider the example in
the next case, centering on the “sudden emergency doctrine.”

Lifson v. City of Syracuse, Court of Appeals of New York (2011)
(17 N.Y.3d 492)
*495 Defendant Klink was the driver of an automobile that struck plaintiffs decedent, Irene Lifson,
while she was crossing the street, causing her death. Pursuant to Klink’s claim that the accident
occurred while he was temporarily blinded by sun glare, the trial court instructed the jury on the
emergency doctrine in his favor. We find that, under these circumstances, it was error to give the jury
the emergency instruction.
Both Lifson and Klink worked in the MONY Plaza, a large office complex in Syracuse containing two
20–story high-rise office towers. MONY Plaza is located across the street from the Harrison Street
Garage, where many of the employees park their cars during the work day. There is, as a result, a
substantial amount of pedestrian traffic crossing Harrison Street between the towers and the garage,
particularly during rush hours. Pedestrians would commonly cross Harrison Street where the MONY
Towers ‘exit lines up with the entrance to the garage, despite the abse nce of a marked crosswalk at
that location.
On February 29, 2000, the day of the accident, Klink retrieved his car after work. At approximately 4:05
p.m., he was attempting to make a left-hand turn onto Harrison Street from Harrison Place. Harrison
Street is a three-lane, one-way road, with traffic running from east to west. Klink had been proceeding
north on Harrison Place, which forms a “T” intersection with Harrison Street and was waiting to turn
to the west. Although Klink worked at the MONY Towers, he testified that he was not familiar with
driving this particular route be cause he parked in different locations throughout the city, rather than
in the same place every day.
Klink testified that he stoppe d at the stop sign to make the le ft turn onto Harrison Street, but that
280 | Negligence: Breach

his view of oncoming traffic was partially obstructed by parked cars in the left-hand lane of Harrison
Street and he had to “creep up” in order to see the approaching vehicles. He had noticed that there
were pe destrians crossing Harrison Street to his left, but he also *496 asserted that he had looked in
that direction and “cleared the road” before making the turn. He further testified that he had be en
looking to his right, toward the oncoming traffic when he started turning. He maintained that, when
he looked back to his left, mid-turn, he was blinded by the sun, “all of a sudden.” His reaction was to
look down and to his right and, when he looked up, the first object he saw was Ms. Lifson. Although
he applie d the brakes, he was unable to avoid hitting her, having seen her only a fraction of a second
prior to impact. At the time of the accident, Ms. Lifson had been wearing a red coat. There was no
evidence that Ms. Lifson darted out in front of Klink’s car, or that Klink was traveling at an excessive
rate of speed.
Plaintiff commenced this action against Klink and the City of Syracuse [fn] alleging causes of action in
negligence and failure to study/ plan for pedestrian traffic. [fn] The ensuing trial was limited to the
issue of liability. As noted, pursuant to Klink’s request and over plaintiff’s objection, the trial court gave
the jury an emergency doctrine instruction in Klink’s favor. The instruction generally conveyed to the
jury that it had to determine whether Klink was in fact confronted with an emergency situation not of
his own making and, if so, whether his conduct in response to that situation was that of a reasonably
prudent person. The jury was free to reject both of those propositions, but if it determined that he had
faced an emergency situation and acted reasonably, it was to find for Klink.
The jury returned a verdict attributing negligence to the City of Syracuse and Ms. Lifson [***].
Klink was found not negligent and the action was dismissed as against him. The Appellate Division
affirmed, finding that the emergency instruction was properly given, as there was a reasonable vie w
of the e vidence showing that the sun glare was a sudden and unforeseen occurrence (72 A.D.3d
1523[2010]). One Justice dissented and would have found that Klink was not entitled to an emergency
instruction because the sun glare should have be en anticipated and was not unexpected in light of
the circumstances surrounding the accident, including the sunny weathe r and the time of day. We
granted plaintiff leave to appeal and now reverse.
*497 The common-law emergency doctrine
“recognizes that when an actor is faced with a sudden and unexpected circumstance which
leaves little or no time for thought, deliberation or consideration, or causes the actor to
be reasonably so disturbed that the actor must make a spe edy decision without weighing
alternative

courses of conduct, the

actor may not be negligent if the

actions taken are

reasonable and prudent in the emergency context, provided the actor has not created the
emergency” (Caristo v. Sanzone, 96 N.Y.2d 172, [2001] [internal quotation marks and citation
omitted]).
The

doctrine

recognizes that a person confronted with such an emergency situation “cannot

reasonably be he ld to the same accuracy of judgment or conduct as one who has had full opportunity
to reflect, even though it later appears that the actor made the wrong decision” [c]. [***]
In Caristo, the trial court gave an emergency instruction in favor of the defendant, who had been
Negligence: Breach | 281

driving in icy conditions when his car slid down a hill, past a stop sign and hit the plaintiff’s vehicle.
We reversed and ordered a new trial, finding no view of the e vidence to support the conclusion that
defendant faced a qualifying emergency. Specifically, since defendant had been aware of the poor
and deteriorating weather conditions that had existed for at least two hours, the resulting icy *498
conditions on the road could not be considered “sudden and unexpected” [c].
By contrast, in Ferrer v. Harris, 55 N.Y.2d 285 (1982) we found that the defendant driver, whose
vehicle struck a child who ran out into the street, was entitled to an emergency doctrine charge. The
defendant had testified that he was driving well below the poste d speed limit and that he stoppe d
abruptly when he saw the child step off the side walk and run into the street between the parked cars.
We de termined that “it [was] more than conceivable that a jury could conclude that this defendant
was faced with an emergency” [c].
The situation presented in this case be ars closer resemblance to that in Caristo. While Klink did not
drive this particular route often, he was familiar with the general area since he worked in the MONY
Towers. Klink was about to turn to the west at a time of day that the sun would be se tting. It is well
known, and therefore cannot be considered a sudden and unexpected circumstance, that the sun can
interfere with one’s vision as it nears the horizon at sunset, particularly when one is heading west. This
is not to say that sun glare can never generate an emergency situation but, under the circumstances
presented, there is no reasonable vie w of the e vidence under which sun glare constitutes a qualifying
emergency. Moreover, the error in giving the emergency instruction was not harmless. The improper
charge permitted the jury to consider Klink’s action under an extremely favorable standard. Because
the application of that instruction to the facts presented could have affected the outcome of the trial,
it was not harmless error [c].
Plaintiff’s remaining contentions are without merit. Accordingly, the order of the Appellate Division,
insofar as appealed from, should be reversed, with costs, the amended complaint reinstated as against
defendant Derek Klink, and the case remitted to Supreme Court for further proceedings consistent
with this opinion.
SMITH, J. (dissenting).
Plaintiff’s argument here rests on the seemingly obvious proposition that no one should be surprise d
to find the sun se tting in the west. I admit that sunset is a foreseeable e vent. Yet surely everyone who
has driven a car knows that good drivers are some times surprised to find the sun in their eyes. Drivers
cannot be e xpected to have always at the *499 forefront of their minds the time of day, the se ason
of the year, the direction they are traveling, the weather conditions and the presence or absence of
obstruction in a particular spot. Therefore, sun glare, as the majority appears to acknowledge, can
sometimes present an emergency situation.
In deciding whether an emergency instruction was properly give n, the issue is not whe ther the
emergency was foreseeable; it is whether it was sudden and unexpected. Our cases illustrate the
distinction. In Ferrer v. Harris, the defendant driver was passing a park where he kne w that children
played, and it was obviously foreseeable that a child would step in front of his car; but the e vent was
sudden and unexpected when it happened, and the driver was therefore entitled to an emergency
282 | Negligence: Breach

instruction. In Amaro v. City of New York, 40 N.Y.2d 30 (1976), plaintiff was a firefighter who was injured
in a fire -house while responding to a fire alarm; we held that the alarm, foreseeable as it was for that
plaintiff in that location, was sudden and unexpected and that the plaintiff was properly accorded
the benefit of an emergency charge. In Kuci v. Manhattan & Bronx Surface Tr. Operating Auth., 88
N.Y.2d 923 (1996), the defendant’s employee, a bus driver, was familiar with the intersection where the
accident occurred and knew “that cars frequently turned right from the left lane in front of buses in
this area.” We ne vertheless held that it was error to deny an emergency charge, because the driver’s
general awareness that such turns often happen “would not preclude a jury from deciding that, as to
the e vents in issue in this case, the driver did not anticipate being suddenly cut off by this particular
car” (id.).
Caristo v. Sanzone appears to be the only case in which we have held an emergency instruction was
improperly given. There, the defendant was driving in bad weather—a mixture of snow, frozen rain and
hail. The claime d emergency was that he encountered a sheet of ice. We held, five to two, that in view
of the driver’s knowledge of the weather conditions “the presence of ice on the hill cannot be de emed
a sudden and unexpected emergency” (id. at 175). Caristo thus holds that no one driving through such
conditions, while exercising reasonable care, could be surprised to find that the road was icy.
A similar holding is not justified here. The record, read most favorably to Klink, shows that he was
driving on a city street, where buildings some times do and sometimes do not block the *500 sun, and
that he was unfamiliar with the route. A jury could surely find that he did not calculate the direction
of his trave l, the time of day and the time of year so precisely that he e xpected to find the sun in his
eyes when he turned. The emergency instruction was properly given.
Note 1. Do you think the emergency instruction should have be en given (like the disse nt and the
majority opinion in the court below) or do you agree with the majority about its impropriety on these
facts? Why?
Note 2. Descriptively, cases like Lifson are de termined on facts as a determination of the breach of
duty. This is why the opinions spe nd so much time analogizing and distinguishing precedents and
framing the facts of various accidents. Normatively, do you think it would be be tter or worse for
certain cases in recurring situations (like sun glare or ice storms) to be de termined as a function of
duty, that is as a question of law for the judge? What would be gained or lost in such a situation?
Note 3. How much should context matter in the determination of reasonableness? Both opinions in
Lifson discuss weather, natural topography feature and buildings as well as the humans populating the
landscape at the time of the accident. Are there no universal rules about conduct without contextual
clues?
Note 4. Lifson concerns the sudden emergency doctrine but other doctrines apply analogous
reasoning to ongoing situations. For instance, the ongoing storm doctrine may relieve a commercial
property owner of the ordinary obligations to clear snow and ice while the storm is still ongoing. It
has been rejected in a number of jurisdictions which have held that commercial landowners have a
duty to take reasonable steps to make a walkway safe from foreseeable dangers, even during ongoing
precipitations.
Negligence: Breach | 283

The doctrine was upheld in New Jersey where, at common law, property owners had no duty to clear
the public side walk adjoining their premises; both commercial and residential property owners were
not liable for the condition of the side walk. The Supreme Court created an exception to that commonlaw rule and impose d a duty on commercial property owners to take reasonable me asures to maintain
the side walks adjoining their property and to keep those in reasonably good condition. Stewart v. 104
Wallace St., Inc., 87 N.J. 146, 149, (1981).
In Pareja v. Princeton, the plaintiff, Angel Alberto Pareja, was walking to work in the e arly morning
hours. It had been raining “a wintry mix of light rain, freezing rain, and sleet” and the precipitation
continued as he walked. He slippe d on ice on an unavoidable portion of sidewalk that connects the
defendant’s driveway to the road and fell, breaking his hip. The weather reports confirmed freezing
rain and temperature
s of thirty-two to thirty-three degrees. Princeton’s property maintenance
supervisor could not specifically recall whether the corporation had pre-treated the side walks that
day; that was how they ordinarily prepared for storms since the company maintained two apartment
buildings and two offices and thus had responsibility for a significant area of sidewalk and common
walkways. The court’s refusal to permit recovery rested on its view of the unreasonableness of a duty
to keep the road clear during the continued precipitation of a storm:
“[C]ommercial landowners do not have the absolute duty, and the impossible burden, to keep
sidewalks on their property free from snow or ice during an ongoing storm.” Reversing the
lower court, which had imposed a duty of reasonable care, the Supreme Court of New Jersey
reasoned that doing so “would create liability for those commercial landowners who “after
actual or constructive notice, [fail] to act in a reasonably prudent manner to remove or reduce
the foreseeable hazard. [c] But such a duty does not consider the size, resources, and ability
of individual commercial landowners or recognize that what may be reasonable for larger
commercial landowners may not be reasonable – or e ven possible – for smaller ones. While we
trust juries to uphold their duties to evaluate reasonableness, we do not wish to submit every
commercial landowner to litigation when it is not feasible to provide uniform, clear guidance
as to what would be reasonable.” In a footnote, the court adds, “The dissent suggests that all
a landlord need do to avoid liability is to take such a simple me asure as spreading salt. This
ignores the diversity of storms a landlord may confront and that measures like spreading salt in
a heavy snowstorm or ice storm can be ineffective or e ven enhance the danger, thus imposing
an untenable duty of care on landlords.” It concludes: “We de cline to impose a duty that cannot
be adhered to by all commercial landowners.” Pareja v. Princeton Int’l Properties, No. 084394,
2021 WL 2371260, at *6–7 (N.J. June 10, 2021)
The court distinguishes between the different capacities of smaller and larger businesses, which
seems somewhat in tension with the obje ctive nature of the standard of reasonable care. How does it
justify its reasoning?
Do the rulings in Blyth, Lifson, and Pareja seem consistent or in tension? How would you seek to
reconcile or distinguish them?
Note 5. In some instances, a corporate entity’s own protocols specify conduct that the company fails
to meet. In such cases, it can be e xtremely helpful to the plaintiff to locate the relevant protocols
284 | Negligence: Breach

during discovery and use them as evidence that even the defendant didn’t believe it was appropriate to
do or to fail to do some act. Might this create perverse incentives to refrain from specifying particular
protocols? What do you think are the advantages of formulating specific policies versus maintaining
only general internal guidelines, or having none at all?

Check your Understanding – Set 22

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=56#h5p-68

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=56#h5p-69

Lubitz v. Wells, Superior Court of Connecticut (1955)
(19 Conn. Supp. 322)
The complaint alleges that James Wells was the owner of a golf club and that he left it for some time
lying on the ground in the backyard of his home. That thereafter his son, the defendant James Wells,
Jr., aged eleven years, while playing in the yard with the plaintiff, Judith Lubitz, aged nine years, picked
up the golf club and proceeded to swing at a stone lying on the ground. In swinging the golf club,
James Wells, Jr., caused the club to strike the plaintiff about the jaw and chin.
Negligence alleged against the young Wells boy is that he faile d to warn his little playmate of his
intention to swing the club and that he did swing the club whe n he kne w she was in a position of
danger. In an attempt to hold the boy’s father, James Wells, liable for his son’s action, it is alleged that
James Wells was negligent because although he kne w the golf club was on the ground in his backyard
and that his children would play with it, and that although he kne w or ‘should have known’ that *323
the negligent use of the golf club by children would cause injury to a child, he neglected to remove
the golf club from the backyard or to caution James Wells, Jr., against the use of the same.

Negligence: Breach | 285

The demurrer challenges the sufficiency of the allegations of the complaint to state a cause of action
or to support a judgment against the father, James Wells.
It would hardly be good sense to hold that this golf club is so obviously and intrinsically dangerous
that it is negligence to le ave it lying on the ground in the yard. The father cannot be he ld liable on the
allegations of this complaint. [c]
The demurrer is sustained.
Note 1. What conduct would need to be e valuated for a negligence action against the father versus a
claim against the son?
Note 2. What was the untaken precaution in this case, if any? What facts would you change to create
a clear negligence action against the father?

Applying the Reasonable Person Standard
Roberts v. State of Louisiana, Court of Appeal of Louisiana (1981)
(396 So.2d 566)
In this tort suit, William C. Roberts sued to recover damages for injuries he sustained in an accident
in the lobby of the U. S. Post Office Building in Alexandria, Louisiana. Roberts fell after being bumped
into by Mike Burson, the blind operator of the concession stand located in the building. Plaintiff sued
the State of Louisiana, through the Louisiana Health and Human Resources Administration, advancing
two theories of liability: respondeat superior and negligent failure by the State to properly supervise
1

and oversee the safe operation of the concession stand. The stand’s *567 blind operator, Mike Burson,
is not a party to this suit although he is charged with negligence.
The trial court order plaintiff’s suit dismissed holding that there is no respondeat superior liability
without an employer-employee relationship and that there is no negligence liability without a cause
in fact showing. We affirm the trial court’s decision for the reasons which follow.
On September 1, 1977, at about 12:45 in the afternoon, operator Mike Burson left his concession stand
to go to the men’s bathroom located in the building. As he was walking down the hall, he bumpe d
into plaintiff who fell to the floor and injured his hip. Plaintiff was 75 years old, stood 5’6 and weighed
approximately 100 pounds. Burson, on the other hand, was 25 to 26 years old, stood approximately 6’
and weighed 165 pounds. At the time of the incident, Burson was not using a cane nor was he utilizing
the te chnique of walking with his arm or hand in front of him. Even though Burson was not joined as a

1. The United States of America was also originally made defendant but was dismissed without prejudice early in this suit
on motion of plaintiff’s counsel.
286 | Negligence: Breach

defendant, his negligence or lack thereof is crucial to a determination of the State’s liability. Because of
its importance, we begin with it. Plaintiff contends that operator Mike Burson traversed the area from
his concession stand to the men’s bathroom in a negligent manner. To be more spe cific, he focuses on
the operator’s failure to use his cane even though he had it with him in his concession stand.
In determining an actor’s negligence, various courts have impose d differing standards of care to which
handicapped persons are e xpected to perform. Professor William L. Prosser expresses one generally
recognized modern standard of care as follows:
“As to his physical characteristics, the reasonable man may be said to be ide ntical with the
actor. The man who is blind … is entitled to live in the world and to have allowance made
by others for his disability, and he cannot be required to do the impossible by conforming to
physical standards which he cannot meet … At the same time , the conduct of the handicapped
individual must be reasonable in the light of his knowledge of his infirmity, which is treated
merely as one of the circumstances under which he acts … It is sometimes said that a blind
man must use a greater degree of care than one who can see; but it is now generally agreed
that as a fixed rule this is inaccurate, and that the correct statement is merely that he must
take the precautions, be the y more or le ss, which the ordinary reasonable man would take if
he were blind.” W. Prosser, The Law of Torts, Section 32, at Page 151-52 (4th ed. 1971).
A careful review of the record in this instance reveals that Burson was acting as a reasonably prudent
blind person would under these particular circumstances.
Mike Burson is totally blind. Since 1974, he has operated the concession stand located in the lobby of
the post office building. It is one of twenty-three vending stands operated by blind persons under a
program funded by the federal government and implemented by the State through the Blind Services
Division of the Department of Health and Human Resources. Burson hired no employees, choosing
instead to operate his stand on his own.
Prior to running the vending stand in Alexandria, Burson attended Arkansas Enterprises for the blind
where he received mobility training. In 1972, he took a refresher course in mobility followed by a
course on vending stand training. In that same year, he operated a concession stand in Shreveport,
his first under the vending stand program. He later operated a stand at Centenary before going to
Alexandria in 1974 to take up operations there. On the date of the incident in question, Mike Burson
testified that he left his concession stand and was on his way to the men’s bathroom when he bumped
into plaintiff. He, without hesitancy, admitted that at the time he was not using his cane, explaining
that he relies on his facial sense which he feels is an adequate te chnique for *568 short trips inside
the familiar building. Burson testified that he does use a cane to get to and from work.
Plaintiff makes much of Burson’s failure to use a cane when traversing the halls of the post office
building. Yet, our review of the testimony received at trial indicates that it is not uncommon for blind
people to rely on other techniques when moving around in a familiar setting. For example Ge orge
Marzloff, the director of the Division of Blind Services, testified that he can recommend to the blind
operators that they should use a cane but he knows that when they are in a se tting in which they
are comfortable, he would say that nine out of ten will not use a cane and in his personal opinion, if
Negligence: Breach | 287

the operator is in a relatively busy area, the cane can be more of a hazard than an asset. Mr. Marzloff
further testified that he felt a reasonably functioning blind person would learn his way around his
work setting as he does around his home so that he could get around without a cane. Mr. Marzloff
added that he has se veral blind people working in his office, none of whom use a cane inside that
facility.
Mr. Marzloff’s testimony is similar to testimony received from Guy DiCharry, a blind business
enterprise counselor with the Blind Services Division. As part of his responsibilities Mr. DiCharry
supervised the Ale xandria vending stand providing him with an opportunity to observe Mike Burson
in a work setting. He testified that Burson knew his way around the building pretty well and that like
most of his other blind operators, he did not use a cane on short trips within the building. He adde d
that he discusse d the use of a cane on such short trips as these with some of his other blind operators
but they took offense to his suggestions, explaining that it was their choice. The only testimony in
the record that suggests that Burson traversed the halls in a negligent manner was that elicited from
plaintiff’s expert witness, William Henry Jacobson. Jacobson is an instructor in peripathology, which
he e xplained as the science of movement within the surroundings by visually impaired individuals.
Jacobson, admitting that he conducted no study or examination of Mike Burson’s mobility skills and
that he was unfamiliar with the State’s vending program, nonetheless testified that he would require
a blind person to use a cane in traversing the areas outside the concession stand. He adde d that a
totally blind individual probably should use a cane under any situation where there in an unfamiliar
environment or where a familiar environment involves a change, whether it be pe ople moving through
that environment or strangers moving through that environment or just a heavy traffic within that
environment.
When cross examined however, Jacobson testified:
“Q. Now, do you, in instructing blind people on their mobility skills, do you tell them to use their own
judgment in which type of mobility assistance technique they’re to employ?
A. Yes I do.
Q. Do you think that three (3) years is a long enough period for a person to become acquainted with
an environment that he might be working with?
A. Yes I do.
Q. So you think that after a period of three (3) years an individual would probably, if he is normal …
has normal mobility skills for a blind person, would have enough adjustment time to be … to call that
environment familiar?
A. Yes.
Q. That’s not including the fact that there may be people in and out of the building?
A. Right.
Q. Now is it possible that if he’s familiar with the sounds of the pe ople inside a building that he may
even at some point in time be come so familiar with the pe ople in an area, regular customers or what
not that you could *569 say that the environment was familiar, including the fact that there are pe ople
there, is that possible?
A. Uh … I would hesitate to say that, in a public facility where we could not … uh … control strangers
coming in.
288 | Negligence: Breach

Q. Well, let’s say that a business has a particular group of clients that are always there, perhaps on a
daily or weekly basis. Now you’ve stated that a blind person sharpens his auditory skills in order to
help him articulate in an area?
A. With instruction, yes.
Q. Right. Isn’t it possible that if he can rely on a fixed travel of a fixed type and number of persons that
it’s possible that that is a familiar environment even though there are people there?
A. Only if they were the same people all the time and they know him, yes.”
Upon our review of the record, we feel that plaintiff has failed to show that Burson was negligent.
Burson testified that he was very familiar with his surroundings, having worked there for three and
a half years. He had spe cial mobility training and his reports introduced into evidence indicate good
mobility skills. He e xplained his decision to rely on his facial sense instead of his cane for these
short trips in a manner which convinces us that it was a reasoned decision. Not only was Burson’s
explanation adequate, there was additional testimony from other persons indicating that such a
decision is not an unreasonable one. Also important is the total lack of any evidence in the record
showing that at the time of the incident, Burson engaged in any acts which may be characterized as
negligence on his part. For example, there is nothing showing that Burson was walking too fast, not
paying attention, et cetera. Under all of these circumstances, we conclude that Mike Burson was not
negligent.
Our determination that Mike Burson was not negligent disposes of our need to discuss liability on the
part of the State.
For the above and foregoing reasons, the judgment of the trial court dismissing plaintiff’s claims
against defendant is affirmed and all costs of this appeal are assessed against the plaintiff-appellant.
Note 1. Do you understand the legal principles embedded in the court’s statement that “there is
no respondeat superior liability without an employer-employee relationship and that there is no
negligence liability without a cause in fact showing?”
Note 2. The court makes an effort to respect the autonomy of Mr. Burson as a blind man with
considerable e xperience on the job and a great deal of comfort in his navigation of his workplace.
Is there a tension, generally, in applying the reasonable person standard (objectively), albeit with
modifications based on ability or disability, and respecting the rights of individuals to make choices
they believe are reasonable (subjectively)? Why or why not? Is the standard inescapably ableist, or is
it capable of (perhaps already succeeding in) reflecting a progressive vie w on differing abilities, by
simply allowing category-wide modifications? Is this a system-wide issue in tort law, that comes along
with using objective versus subjective standards for conduct?

Robinson v. Lindsay, Supreme Court of Washington (1979)
(92 Wash.2d 410)
UTTER, CHIEF JUSTICE.
Negligence: Breach | 289

[Billy Anderson, age 13 years, was driving a snowmobile belonging to defendant Lindsay, pulling
plaintiff Kelly Robinson on an innertube attached to the snowmobile. Plaintiff’s thumb was severed
when it was caught in the tow rope. The thumb was reattached, but still not fully functional at the
time of trial. Plaintiff filed suit against Billy Anderson and Lindsay, the owner of the snowmobile.]
An action seeking damages for personal injuries was brought on behalf of Kelly Robinson who lost full
use of a thumb in a snowmobile accident when she was 11 years of age. The petitioner, Billy Anderson,
13 years of age at the time of the accident, was the driver of the snowmobile. After a jury verdict in
favor of Anderson, the trial court ordered a new trial. The single issue on appe al is whether a minor
operating a snowmobile is to be he ld to an adult standard of care. The trial court failed to instruct
the jury as to that standard and ordered a new trial because it believed the jury should have be en so
instructed. We agree and affirm the order granting a new trial.
The trial court instructed the jury under WPI 10.05 that:
“In considering the claimed negligence of a child, you are instructed that it is the duty of a
child to exercise the same care that a reasonably careful child of the same age, intelligence,
maturity, training and experience would exercise under the same or similar circumstances.”
Respondent properly excepted to the giving of this instruction and to the court’s failure to give an
adult standard of care. The question of what standard of care should apply to acts of children has
a long historical background. Traditionally, a flexible standard of care has be en used to determine
if children’s actions were negligent. Under some circumstances, however, courts have de veloped a
rationale for applying an adult standard. In the courts’ search for a uniform standard of behavior to
use in de termining whether or not a person’s conduct has fallen below minimal acceptable standards,
the law has developed a fictitious person, the “reasonable man of ordinary prudence.”
That term was first used in Vaughan v. Menlove, 132 Eng.Rep. 490 (1837). Exceptions to the reasonable
person standard developed when the individual whose conduct was alleged to have be en negligent
suffered from some physical impairment, such as blindness, deafness, or lameness. Courts also found
it necessary, as a practical matter, to depart considerably from the obje ctive standard when dealing
with children’s behavior. Children are traditionally encouraged to pursue childhood activities without
the same burdens and responsibilities with which adults must contend. [C] As a result, courts evolved
a special standard of care to measure a child’s negligence in a particular situation.
In Roth v. Union Depot Co., 13 Wash. 525, (1896), Washington joined “the overwhelming weight of
authority” in distinguishing between the capacity of a child and that of an adult. As the court then
stated, at page 544:
“[I]t would be a monstrous doctrine to hold that a child of inexperience—and experience can
come only with years—should be he ld to the same de gree of care in avoiding danger as a
person of mature years and accumulated experience.”
The court went on to hold, at page 545, 43 P. at page 647:
“The care or caution required is according to the capacity of the child, and this is to be
290 | Negligence: Breach

determined, ordinarily, by the age of the child. … [A] child is held … only to the e xercise of
such degree of care and discretion as is reasonably to be e xpected from children of his age.”
[***] In the past we have always compared a child’s conduct to that expected of a reasonably
careful child of the same age, intelligence, maturity, training and experience. This case is the
first to consider the question of a child’s liability for injuries sustained as a result of his or her
operation of a motorized vehicle or participation in an inherently dangerous activity.
Courts in other jurisdictions have created an exception to the special child standard because of the
apparent injustice that would occur if a child who caused injury while engaged in certain dangerous
activities were permitted to defend himself by saying that other children similarly situated would not
have e xercised a degree of care higher than his, and he is, therefore, not liable for his tort. Some courts
have couched the e xception in terms of children engaging in an activity which is normally one for
adults only. See, e.g., Dellwo v. Pearson, 259 Minn. 452 (1961) (operation of a motorboat).
We believe a be tter rationale is that when the activity a child engages in is inherently dangerous,
as is the operation of powerful mechanized vehicles, the child should be held to an adult standard
of care. Such a rule protects the ne ed of children to be children but at the same time discourages
immature individuals from engaging in inherently dangerous activities. Children will still be free
to enjoy traditional childhood activities without being held to an adult standard of care. Although
accidents sometimes occur as the result of such activities, they are not activities generally considered
capable of resulting in “grave danger to others and to the minor himself if the care use d in the course
of the activity drops below that care which the reasonable and prudent adult would use…” Daniels v.
Evans, 107 N.H. 407, 408 (1966).
Other courts adopting the

adult standard of care

for children engaged in adult activities have

emphasized the hazards to the public if the rule is othe rwise. We agree with the Minnesota Supreme
Court’s language in its decision in Dellwo v. Pearson, supra, 259 Minn. at 457–58: “Certainly in the
circumstances of modern life, where vehicles moved by powerful motors are readily available and
frequently operated by immature

individuals, we

should be

skeptical of a rule

that would allow

motor vehicles to be operated to the hazard of the public with less than the normal minimum
degree of care and competence.” Dellwo applied the adult standard to a twelve-year-old defendant
operating a motor boat. Other jurisdictions have applie d the adult standard to minors engaged in
analogous activities. Goodfellow v. Coggburn, 98 Idaho 202, 203–04 (1977) (minor operating tractor);
Williams v. Esaw, 214 Kan. 658, 668, (1974) (minor operating motorcycle); Perricone v. DiBartolo, 14
Ill.App.3d 514, 520 (1973) (minor operating gasoline-powered minibike); Krahn v. LaMeres, 483 P.2d
522, 525–26 (Wyo.1971) (minor operating automobile). The holding of minors to an adult standard of
care when they operate motorized vehicles is gaining approval from an increasing number of courts
and commentators. [cc] The operation of a snowmobile likewise requires adult care and competence.
Currently 2.2 million snowmobiles are in operation in the United States. 9 Envir. Rptr. (BNA) 876 [1978
Current Developments].
Studies show that collisions and other snowmobile accidents claim hundreds of casualties each year
and that the incidence of accidents is particularly high among inexperienced operators. [c] At the time
of the accident, the 13-year-old petitioner had operated snowmobiles for about 2 years. When the
Negligence: Breach | 291

injury occurred, petitioner was operating a 30-horsepower snowmobile at speeds of 10–20 miles per
hour. The record indicates that the machine itself was capable of 65 miles per hour. Because pe titioner
was operating a powerful motorized vehicle, he should be held to the standard of care and conduct
expected of an adult.
The order granting a new trial is affirmed.
Note 1. The standard is typically reformulated along the lines of “what it is reasonable to e xpect
of children of like age, intelligence and e xperience.” See Restatement (Second) of Torts § 283A and
Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 10 (2010). What do you think
of the inclusion of “intelligence” in this formulation?
Note 2. Do you think that local customs and mores should play a role in de termining what counts as
an adult activity? In the mountain states, the driving age is lower, partly as a consequence of the ne ed
to drive tractors and farm vehicles, and the operation of vessels on the water in areas surrounded by
water may be much more common at a younger age in places like Washington State, Hawaii, Michigan
or states in which life takes place around and on lakes, perhaps using fishing for sustenance. In one
jurisdiction, deer hunting is considered an activity fit for children, thus subjecting the activity to the
lower standard of care applicable to a child. What do you think of such a determination, and what
do you think it might reflect? What sorts of evidence would you seek of what is ordinarily done, or
known, in a given community? The ne xt case takes up the question of custom evidence as a me ans of
proving the breach element of the defendant’s conduct.
Note 3. Critiques of the “Objective” Standard. Professor Richard Delgado, one of the pione ers of
critical race the ory and “LatCrit” studies, has critiqued the allegedly objective nature of the “objective”
standard in law. “[I]n many areas the law prefers “objective” over “subjective” standards for judging
conduct. …Where does this preference come from, and what does it say about ourselves and our
legal culture? Does the objective-subjective distinction hold up under analysis? When we rehearse
the familiar arguments in favor of one approach or the other,[fn] what are we doing, and what is at
stake? … [I]n many cases it is the stronger party… that wants to apply an objective standard to a key
event. … Powerful actors … want objective standards applied to them simply because the se standards
always, and already, reflect them and their culture. These actors have be en in power; their subjectivity
long ago was deemed “objective” and imposed on the world. …It is no surprise, then, that judgment
under an “objective” (or reasonable person) standard generally will favor the stronger party.” Richard
Delgado, Shadowboxing: An Essay on Power, 77 Cornell L. Rev. 813, 818 (1992)
What do you think of Professor Delgado’s arguments about the nature of power and the role it may
play in shaping our understanding of what is “reasonable”? In some instances, courts have attempted
to tailor the standard or make incremental changes to the case law. For instance, in the context
of sexual harassment, one court shifted from a reasonableness standard about a hostile workplace
explicitly to focus on the victim’s perspective, reasoning that “[a] complete understanding of the
victim’s view requires, among other things, an analysis of the different perspectives of men and
women. Conduct that many men consider unobjectionable may offend many women… We adopt the
perspective of a reasonable woman primarily because we believe that a sex-blind reasonable person
standard tends to be male-biased and tends to systematically ignore the e xperiences of women. The
292 | Negligence: Breach

reasonable woman standard does not establish a higher level of protection for women than men…
By acknowledging and not trivializing the effects of sexual harassment on reasonable women, courts
can work towards ensuring that neither men nor women will have to “run a gauntlet of sexual abuse
in return for the privilege of being allowed to work and make a living.” Ellison v. Brady, 924 F.2d 872,
878, 880-881 (9th Cir. 1991).
In the 21

st

century, using gender categories so blithely may no longer be considered as helpful as it

once was; indeed some may find it inappropriate or e ven harmful in its construction of gender in
starkly binary terms. Yet this only underscores how dynamic tort law can and must be in recognizing
changes in behavior and in the understanding of social constructs such as gender.
Note 4. Objective Reasonableness and Informed Consent. Delgado’s article [Shadowboxing: An Essay
on Power, 77 Cornell L. Rev. 813 (1992)] offers three

contexts in which to explore

the

que stion,

including informed consent by medical providers which you have now encountered in a case he
discusses. He writes: “Before performing medical operations or other invasive procedures, doctors
must communicate to the patient what a reasonable person would want to know about the material
risks and benefits of the procedure… It is immaterial whether the patient has an undisclosed or
highly personalized fear or preference that, if known, would have called for further information
or a different course of action. The law requires only the doctor’s initial disclosure of “objective”
information. [I]t is the rare doctor who asks the patient about her specific feelings and attitudes
toward pain, incapacity, dependency, death, risk aversiveness, reproductive faculties, and religion—a
few of the matters that could bear significantly on a medical decision. Answers to these questions
might suggest to the doctor the ne cessity of further discussions with the patient, further disclosures,
or a different course of treatment. The case law of informed consent makes clear, however, that the
physician’s duty to disclose is simpler and more e asily satisfied. The le ading case in this area, Cobbs
v. Grant, requires that the doctor disclose to the patient the reasonable risks and complications of
the contemplated procedure and, be yond this, what a competent member of the me dical community
would disclose. Although more e xacting standards have be en proposed, they are not yet the law.” Id.
At 818 (emphasis added; internal citations omitted).
What do you think of Delgado’s arguments about the obje ctive standard in the context of medical
treatment? Do your views of the nature of “reasonableness” differ based on the contexts in which the
standards may be used?
Note 5. Angela Onwuachi-Willig, has argued that a more finegrained and intersectional approach is
necessary for greater equality and inclusion:
“[C]ourts should employ a standard based on a reasonable person in the

complainant’s

intersectional and multidimensional shoes, rather than the ostensibly objective reasonable
person standard—which some courts have de clared to be male biase d—when evaluating sexual
harassment claims. Although many authors have argued for adopting a reasonable woman
standard in harassment law, none have taken the further step of contending that the standard
must also be rooted in an intersectional and multidimensional lens in order to capture the
different ways that women across intersectional categories may experience any particular
event or events. …Currently, antidiscrimination law employs what courts deem an objective
Negligence: Breach | 293

victim standard to analyze

se xual harassment claims. In so doing, the

law ignores the

complexities of how gender and racial subordination, stereotype, and bias can shape a victim’s
vulnerability to harassment, her credibility in the e yes of factfinders, and others’ perceptions
about whether she is harmed by the undesired conduct. It also disregards how a complainant’s
own understanding of others’ perceptions about her group or groups, whether based on
race, sex, or other identity factors like religion and age, can shape her own response to the
harassment she is enduring. By adopting a standard based on a reasonable person with the
complainant’s intersectional and multidimensional identity, courts can acknowledge how the
current standard, though allegedly objective, is actually rooted in the e xperiences of white
men, particularly because the case law has largely been developed by white male judges.
What About #UsToo?: The Invisibility of Race in the #MeToo Movement, 128 Yale

L.J. F. 105, 108

(2018) (internal citations omitted). If we take Onwuachi-Willig’s suggestion seriously, what might this
require in the profession? Can judges and clerks working on cases and lawyers advocating for clients
adopt intersectional perspectives even as the legal profession works, slowly, to try to achieve greater
institutional diversity? Is the jury a help or a hindrance in this regard? Should demographic evidence
be use d to shape the obje ctive standard, regardless of the identities of the de cisionmakers? When
tailoring an objective standard to reflect some of the identity markers of the party to whom it applies,
at what point does it transform from objective into subjective?
Note 6. Combined uses of Objective and Subjective Standards. In one context, the Supreme Court has
aimed for a balance by using both standards: “Title VII is violated when the workplace is permeated
with discriminatory behavior that is sufficiently severe or pervasive

to create

a discriminatorily

hostile or abusive working environment … This standard requires an objectively hostile or abusive
environment—one that a reasonable person would find hostile or abusive—as well as the victim’s
subjective perception that the environment is abusive.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S. Ct.
367, 368, 126 L. Ed. 2d 295 (1993)
As you learned in Ali v. Margate, however, employment discrimination claims are notoriously difficult
to win. As you continue to le arn about the way tort claims and defenses are structured and litigated,
kee p in mind the use of objective and subje ctive standards as well as the ways they work and for whom.

Check your Understanding – Set 23

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=56#h5p-70

294 | Negligence: Breach

Reflection Essay

What would it look like for tort law to use a different standard in place of objective reasonableness?
What costs and benefits would flow to the system? What values would you prioritize in redesigning a
system?

Negligence: Breach | 295

17. Negligence: Policy Considerations
Regarding Duty and Breach (Socratic Script)
Alvarado is a viscerally-disturbing case, or so some may find. In its reliance on Palsgraf, it provides
a review of duty and breach as well as an opportunity to think about the implications of following
different legal rules (such as the majority and dissenting opinions in Palsgraf).

Questions or Areas of Focus for the Readings:
• What are the untaken precautions here?
• What are the social justice implications of finding, or denying, liability on these facts?
• Are there parties you would have liked to be able to reach (either intuitively, or normatively) to
extend liability or to allocate it better?
• Do you see the difficulties involved with separating duty from breach in some instances?

Alvarado v. Sersch, Supreme Court of Wisconsin (2003)
(262 Wis.2d 74)
The pe titioners, Dora Alvarado and her four minor children, seek review of a published court of
appeals decision affirming a circuit court grant of summary judgment in favor of the respondents,
Oakbrook Corporation, Meriter Retirement Services, Inc., and Meriter’s insurer. [fn] Alvarado asserts
that the court of appeals erred in using public policy factors to limit liability before all the facts were
considered. Because we conclude that there are genuine issues of material fact, we de termine that
the court of appeals erred when it affirmed the grant of summary judgment limiting liability based
on public policy factors. Accordingly, we reve rse the court of appeals and remand the action to the
circuit court for further proceedings.
*79 Meriter Retirement Services, Inc. (Meriter) owns student apartments in Madison that are managed
by Oakbrook Corporation (Oakbrook). On August 12, 1998, during the busy student turnover period,
Oakbrook’s property manager walked through a vacated apartment to inspect the premises. In his
deposition he testified that “mabinets” were on his che cklist, but he did not remember checking them.
On August 13, 1998, a painting crew entered the apartment. One of the painters discovered what he
believed to be a “candle” in the kitchen cabinet. Another painter recognized it as a firework device.
They moved the item out of the way and continued working. No one in the crew informed Oakbrook
or Meriter about the firework.
On August 14, 1998, Dora Alvarado and Ron Boehm, the owner of the janitorial service retained by
296 | Negligence: Policy Considerations Regarding Duty and
Breach (Socratic Script)

Oakbrook, entered the apartment to clean it. Alvarado had already completed a ten-to eleven-hour
shift that day, but had been called back to work. Boehm noticed what he thought to be a candle on
the windowsill. He commented to Alvarado that it was a “strange looking candle.” It was described as a
wax candle with red, white, and blue colors, about six inches tall, and an inch in diameter. After Boehm
left the apartment, Alvarado began cleaning the interior of the gas stove. She opened the stovetop to
expose the burne r trays for vacuuming. Alvarado knew it was necessary to preserve the flame of the
pilot light, which occasionally extinguished during the cle aning process. Because she had forgotten to
bring matches, she decided to use the “candle” to preserve the flame, and lit the de vice with the pilot
*80 flame. The firework exploded as she was setting it down, blowing off most of her right hand.
Alvarado and her children filed a complaint in Dane County circuit court against Meriter, Oakbrook,
the painting contractor, and each of their insurers. The plaintiffs sought damages as a result of
Alvarado’s personal injuries. The circuit court granted Oakbrook and Meriter’s motion for summary
judgment. It concluded that Oakbrook and Meriter did not have a duty of care to protect Alvarado
from a potential harm they neither knew nor reasonably could have foreseen.
The court of appeals affirmed the circuit court’s grant of summary judgment for Oakbrook and
Meriter, but employed a different rationale. Rather than focusing on negligence, the court of appeals
considered public policy factors that limit a defendant’s liability. It concluded that the injury was
too remote from the negligence, and in retrospect it appeared too highly extraordinary that the
negligence should have resulted in the harm. Under this analysis, the court of appeals determined that
public policy barred any imposition of liability, and therefore it affirmed the circuit court’s grant of
summary judgment.
Alvarado seeks a reversal of the court of appeals’ decision, and a remand for a jury trial. She argues
that it was improper for the court of appeals to use public policy considerations to limit liability before
all the facts had been presented to a jury for a determination of negligence. She asserts that the grant
of summary judgment was error because there remain genuine issues of material fact. [***]
Wisconsin has long followed the minority view of duty set forth in the dissent of Palsgraf v. Long Island
Railroad. [c] In that dissent, Judge Andrews explained that “[e]veryone owes to the world at large
the duty of refraining from those acts that may unreasonably threaten the safety of others.” Palsgraf
v. Long Island R.R. Co., 248 N.Y. 339 (1928) (Andrews, J., dissenting). *82 Every person has a duty to
use ordinary care in all of his or her activities, and a person is negligent when that person fails to
exercise ordinary care. Gritzner, 235 Wis.2d 781, ¶¶ 20 & 22. In Wisconsin a duty to use ordinary care
is established whenever it is foreseeable that a person’s act or failure to act might cause harm to some
other person. Id. ¶ 20. Under the general framework governing the duty of care, a “ ‘person is not using
ordinary care and is negligent, if the person, without intending to do harm does something (or fails to
do something) that a reasonable person would recognize as creating an unreasonable risk of injury or
damage to a person or property. [c]
The question of duty is nothing more than an “ingredient in the de termination of negligence.” [c]
Once it has been determined that a negligent act caused the harm, “the que stion of duty is irrelevant
and a finding of nonliability can be made only in terms of public policy.” [c] The “duty” ingredient
of negligence should not be confused with public policy limitations on liability. [fn] “[T]he doctrine
Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script) | 297

of public policy, not the doctrine of *83 duty, limits the scope of the defendant’s liability.” [c] “In
Wisconsin, one always owes a duty of care to the world at large, which is why ‘[t]he consistent analyses
of this court reveal that the question of duty is not an element of the court’s policy determination.”
[cc]
Thus, negligence and liability are distinct concepts. [c] After negligence has be en found, a court may
nevertheless limit liability for public policy reasons. [cc] The public policy considerations that may
preclude liability are:
(1) the injury is too remote from the negligence;
(2) the injury is too wholly out of proportion to the tortfeasor’s culpability;
(3) in retrospect it appears too highly extraordinary that the negligence should have resulted
in the harm;
(4) allowing recovery would place too unreasonable a burden on the tortfeasor;
(5) allowing recovery would be too likely to open the way for fraudulent claims; [or]
(6) allowing recovery would enter a field that has no sensible or just stopping point.
Gritzner, 235 Wis.2d 781, ¶ 27.
In most cases, the better practice is to submit the case to the jury before de termining whether the
public policy considerations preclude liability. Only in those cases where the facts are simple to
ascertain and the public policy questions have be en fully presented may a court review public policy
and preclude liability before trial. [Citations omitted]
A jury’s determination of negligence includes an examination of whether the defendant’s exercise of
care foreseeably created an unreasonable risk of harm to others. [c] Public policy factors can also
implicate the concept of foreseeability. In a sense, evidence regarding foreseeability can play a dual
role. Besides having the aid of the jury’s opinion when assessing liability, a judge will also be *85 aided
by the facts that were brought to light during the jury trial. Having examined the law, we ne xt apply
those principles to the facts in this case.
The court of appeals erred in affirming the summary judgment on public policy grounds. This case
requires a full factual resolution before application of a public policy analysis. It is not one of those
simple cases where public policy can be use d to limit liability before finding negligence. Here, there
remain genuine issues of material fact, and public policy factors limiting liability should be considered
only after a full resolution of the facts at trial.
It is desirable to have a full trial to precede the court’s determination because the issue s in this case
are complex and the factual connections attenuated. [c] A jury will hear testimony about the standard
of care

that a reasonable

property manage
r would exercise

in inspe cting a vacated apartment.

Oakbrook and Meriter claim that there was no negligence on their part. Alvarado, however, claims
that if Oakbrook had performed a thorough inspection of the apartment, as it should have, then the
firework would have be en found. In his deposition, Alvarado’s expert opines that industry practice is
to conduct an adequate inspe ction before allowing employees and contractors onto the premises. He

298 | Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script)

asserts that ordinary care requires a property manager to have a safety program which anticipates
and addresses potential hazards:
“Well, they have a big responsibility in their capacity of managing residential housing…. There’s
all kinds of things to be considered by a company that—that’s in *86 charge of managing
property…. I could talk about that for hours, but the main ide a is that you have to anticipate
potential hazards and deal with them in some way. And having a hazardous material or
hazardous item in an apartment is something that they’re required to anticipate and have a
plan and a program to deal with.”
This case

1

is similar to Coffey, in which this court concluded that a full trial should precede

a

determination that policy considerations preclude liability based on a negligent inspection. Coffey, 74
Wis.2d at 543. In that case, a tenant suffered losses as the result of a fire at its leased premises. The
tenant sued a building inspector and the City of Milwaukee claiming that they were negligent because
the standpipes necessary to furnish the water to fight fire at the le ased premises were defective and
had not been properly inspected.
In e
xamining whether public policy considerations should preclude

liability, the Coffey court

determined that a full factual resolution was necessary for a fair and complete e valuation of the policy
considerations. The court explained that the case involved the complex issue of municipal tort liability
arising out of the alleged negligence of a building inspector in carrying out fire inspe ctions. The court
concluded that findings as to actual negligence, damage, and the causal relationship between them
would be material and helpful in evaluating the public policy considerations. Accordingly, it refused to
preclude liability on public policy grounds prior to a full factual resolution.
*87 Analogous to Coffey, this case involves facts that are not simple to ascertain. It addresses the tort
liability of property managers arising out of the alleged negligence of an inspector in carrying out
apartment inspections. Like Coffey, a sufficient factual basis is not presented here for considering,
evaluating, and resolving the public policy issues involved. Findings as to actual negligence, damages
and the causal relationship between them would be material and helpful in evaluating the public policy
considerations.
¶ The partie s dispute the purpose of Oakbrook’s inspection. Alvarado claims part of the inspe ction’s
purpose

was safety, while

Oakbrook contends the inspection was only to note

ne eded repairs,

cleaning, and security-deposit withholdings. A jury would hear testimony about what constitutes
a proper inspection, and whether Oakbrook’s inspection satisfied that obligation. Ultimately, a jury
would have de termined whether Oakbrook had instituted adequate safety measures, and whether
Oakbrook was negligent for failing to instruct contractors about what procedure to follow when a
dangerous object is found.
When the circuit court granted summary judgment in favor of Oakbrook and Meriter, it concluded
that Oakbrook and Meriter did not owe Alvarado a duty to exercise ordinary care. However, everyone

1. Deposition testimony of Frank Burg, P.E., September 29, 2000, p. 34.
Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script) | 299

owes a duty of ordinary care to all persons. The effect of the circuit court’s summary judgment
was to limit the imposition of liability. [c]; Klassa v. Milwaukee Gas Light Co., 273 Wis. 176, 183 (1956)
(“whenever a court holds that a certain act does not constitute negligence be cause there was no duty
owed by the actor to the injured party, although the act complained of caused the injury, such court is
making a policy determination”).
*88 Likewise, albeit with a different rationale, the court of appeals limited liability by applying public
policy factors. Neither the court of appeals nor the circuit court had the benefit of a full presentation
of facts or a jury’s verdict on negligence before limiting liability. Because there remain genuine issues
of material fact, summary judgment was erroneously granted.
Summary judgment is uncommon in negligence actions, “because the court ‘must be able to say that
no properly instructed, reasonable jury could find, based on the facts presented, that [the defendants]
failed to exercise ordinary care.’” [c] The concept of negligence is pe culiarly elusive, and requires the
trier of fact to pass upon the reasonableness of the conduct in light of all the circumstances, “ ‘even
where historical facts are concededly undisputed.’” Id. Ordinarily, this is not a decision for the court.
In sum, we de termine that there remain genuine issues of material fact. Here, public policy factors
limiting liability should be considered only after a full resolution of the facts at trial. The court of
appeals erred when it affirmed the grant of summary judgment limiting liability based on public policy
factors. Accordingly, we reve rse the court of appeals and remand the action to the circuit court for
further proceedings.
¶ 32 DIANE S. SYKES, J. (dissenting).
I respectfully *89 dissent. The majority concludes that “the court of appeals erred when it affirmed
the grant of summary judgment limiting liability based on public policy factors.” I disagree. The court
of appeals properly evaluated the public policy limitations on liability in this case, and properly did so
in advance of trial, affirming the circuit court’s order of summary judgment.
As the

majority notes, negligence

law in Wisconsin is based on the dissent in Palsgraf v. Long

Island R.R. Co., 248 N.Y. 339 (1928)(Andrews, J., dissenting), in which Judge Andrews of the New York
Court of Appeals described negligence as a breach of the duty shared by all members of society
to “refrain[ ] from those acts that may unreasonably threaten the safety of others.” [c] This is the
duty of ordinary care, and it is measured by reference to a “reasonable person” standard, which is
applied to evaluate the nature and foreseeability of the risk of harm associated with the conduct in
question in order to determine whether a defendant was negligent. [c] [***] *90 The de termination of
negligence is followed by a determination of causation and damages. [fn] Although these are generally
factual questions for the jury, there are some circumstances, not implicated here, under which the
determination of negligence involves a mixed question of fact and law. [c]
However, it is not always true that negligence causation damages = liability. Considerations of public
policy may preclude the imposition of liability even where the facts establish that a negligent act or
omission on the part of the defendant was a cause of the plaintiff’s damages. This is purely a question
of law for the court. [c] (“The application of public policy considerations is a function of the court.”);

300 | Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script)

[c] (“A finding of nonliability made in terms of public policy is a question of law which the court alone
decides.”).
Accordingly, we observed last term that “in Wisconsin, common law limitations on liability are
determined not by reference to the abse nce of a duty, *91 but as a matter of public policy.” [c] This
is because “[a]ll members of society are ‘held, at the very least, to a standard of ordinary care in all
activities.’” [c]. This distinction between the determination of negligence and the imposition of liability
is consistent with the Palsgraf dissent: “As was said by Mr. Justice Holmes many years ago, ‘[t]he
measure of the defendant’s duty in determining whether a wrong has been committed is one thing,
the measure of liability when a wrong has been committed is another.’” Palsgraf, 162 N.E. at 102.
The majority recites the public policy limitations on liability but refuses to apply them, concluding
that “[t]his case requires a full factual resolution *92 before application of a public policy analysis.”
[***] I disagree.
I recognize that we have said it is usually “better practice” or “generally better procedure” to await
resolution of the factual issues in a negligence case before submitting it to public policy analysis. [c]
However, we have also said that “[t]he assessment of public policy does not necessarily require a full
factual resolution of the cause of action by trial.” [cc] As a further example, in our seminal case on the
tort of negligent infliction of emotional distress, we held:
The application of public policy considerations is a function solely of the court. While it is
generally better *93 procedure to submit negligence and cause-in-fact issues to the jury
before addressing legal cause, that is, public policy issues, … the circuit court or this court may
grant summary judgment on public policy grounds before a trial or a court may bar liability on
public policy considerations after trial. When the pleadings present a question of public policy,
the court may make its determination on public policy grounds before trial. In contrast, when
the issues are complex or the factual connections attenuated, it may be desirable for a full trial
to precede the court’s determination. [c]
In this case this court is determining public policy considerations before trial be cause the facts
presented are simple, and because the que stion of public policy is fully presented by the complaint
and the motion to dismiss. [c] Thus, it is not uncommon for courts to decide on summary judgment
that negligence liability should be limited based upon considerations of public policy. Some cases are
factually uncomplicated and fully conducive to a pre-trial legal determination on the applicability of
public policy limitations on liability. This is such a case.
The majority’s rejection of pre-trial public policy analysis in this case is unwarranted. To the e xtent
that it discourages the lower courts from evaluating public policy liability limitations on motions for
summary judgment, it will produce two divergent effects: 1) there will be an increase in unne cessary
trials and appeals (where the circuit or appellate courts would otherwise have precluded liability pretrial but now consider themselves constrained to do it only post-trial *94 because of the majority’s
decision here); and 2) there will be an e xpansion of liability (where the circuit or appellate courts
consider themselves constrained against precluding liability on public policy grounds because of the
presence of a jury verdict on negligence).
Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script) | 301

While I have no quarrel with the “be tter practice” general rule note d above, I do not agree that the
facts of this case are so complex that the e valuation of public policy limitations on liability must await
a jury verdict on negligence, cause-in-fact and damages. Judicial gate-keeping on this potentially
dispositive le gal issue is e xtremely important given the breadth and potential reach of the definition
of negligence in this state. This was an important part of the Palsgraf dissent. What we in Wisconsin
refer to as public policy limitations on liability, Judge Andrews catalogued as factors that govern the
court’s determination of legal or “proximate cause.”
Judge

Andrews said that the

duty of ordinary care

is owed to all who might be

injured as a

consequence of an unreasonably risky (i.e., negligent) act or omission, but he also said “there is one
limitation. The damages must be so connected with the negligence that the latter may be said to
be the proximate cause of the former.” Palsgraf, 162 N.E. at 103. The negligence, he said, might be
“[a] cause, but not the proximate cause. What we [ ] mean by the word ‘proximate’, that because of
convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series
of events beyond a certain point. This is not logic. It is practical politics.” Id. This judicial line-drawing
relies upon “common sense” and “fair judgment,” and “endeavor[s] to make a rule in e ach case that will
be practical and in keeping with the general understanding of mankind.” Id. at 104.
Public policy limitations on liability are de cided by the court as a matter of law, but the majority
nevertheless considers the “jury’s opinion” to be an “aid” to the court in making that decision. In this
regard, the majority seems to be suggesting that the jury should influence the court’s assessment
of whether public policy requires non-liability as a matter of law. Courts decide questions of law
independently, without deference to the jury. As a practical matter, however, most judges find it
difficult to throw out a jury verdict.
This case is ame nable to a pre-trial application of the six-factor public policy analysis. The case is
not complex, and the historical facts are undispute d. We do not ne ed a jury verdict on negligence,
causation, and damages in order to determine whether public policy requires nonliability as a matter
of law. I agree with the court of appeals that the first public policy factor (remoteness) and the third
(extraordinary result) preclude liability here, even if a jury were to find causal negligence on the part
of the apartment owner and manager. I would also conclude that the se cond factor (disproportionality
of culpability to injury) is implicated in this case.
Dora Alvarado’s injury was unquestionably tragic and devastating. But the accident that caused it
occurred because she mistook a firework for a candle, and lit that firework in the pilot light of an
oven that she was cleaning, in an attempt to preserve the pilot light flame in case it went out while
she was vacuuming the oven’s interior. As a matter of law, such an injury is too remote from the
alleged negligent inspection by the apartment owner and manager, as well as too extraordinary and
too disproportionate to that alleged negligence. I would affirm the court of appeals.
*96 I am authorized to state that Justice DAVID T. PROSSER, JR. joins this dissent.
Note 1. Do you think it was reasonable for Alvarado to confuse a firework for a candle? Would your
answer be relevant to your assessment of the case? The lower court’s ruling included a bit more
factual detail that you might find helpful in considering that issue.
302 | Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script)

Many of the apartments managed by Oakbrook are occupied by University of Wisconsin
students. Leases on these apartments generally run from August 15 of one year to August 14 of
the ne xt. Each year a high number of the apartments “turn over” during August. As apartments
are vacated, an Oakbrook employee *756 walks through the apartments to inspect them for
damage and to determine whether any cleaning or repairs are necessary.
In August of 1998, Oakbrook employee Larry Keleher was responsible for overseeing 240
rental units. Between 150 and 175 of these units turned over between August 12 and August
15 of 1998. Oakbrook’s “Operating Handbook” instructs employees to inspect apartments
“thoroughly” and inspect all areas on a checklist. The che cklist includes cabinets. Oakbrook
does not have a hazardous materials policy and conducts no safety training for either its
employees or its painting or cleaning contractors. Oakbrook’s manual does, however, generally
advise employees to be safety conscious. Its manual states: “Staff should put safety first at all
times. Staff should use common sense to not engage in work which endangers the safety and
health of themselves and others.” Under the job description for various positions, including
“property manager,” the manual states: “Continually inspect property and improvements for
curb appeal, protection of property value, and potential safety hazards.” On August 12, 1998,
Keleher conducted a move-out inspection of apartment 303 at Meriter’s West Main Street
property. There

is no e vidence

of complaints relating to the

vacating tenant. During his

inspection, Keleher did not see a firework device located in a wall-mounted cabinet in the
kitchen. Keleher does not remember whether he opened any of the

cabinets during his

inspection.
The ne xt day, August 13, three painters from D.P. Painters entered apartment 303 to paint at
Oakbrook’s request. While in the kitchen, one of the painters found in the kitchen cabinet what
turned out to be an M–250 firework, an explosive de vice e quivalent *757 to one-quarter of a
stick of dynamite. The firework was about four inches tall and about an inch in diameter with a
wick in the top. Statements regarding its color varied, but there was general agreement that it
was white with either red and blue, or red or blue, stripes. At least one of the painters believed
that the firework was a candle. Another painter, who had previously seen an M–80 firework,
recognized the obje ct to be a firework explosive de vice. The painters removed the firework
from the cabinet, but left it in the apartment and did not notify Oakbrook.
The day after the painters left, August 14, Alvarado and her supervisor, Ron Boehm, employees
of a janitorial service employed by Oakbrook, entered and began cleaning apartment 303.
Boehm noticed the firework device on the windowsill and said to Alvarado something to the
effect: “That’s a strange looking candle.” Boehm described the de vice as a wax candle with a
red, white, and blue exterior.
Alvarado similarly believed the firework was a candle and de cided she could use it to relight
the pilot light on a gas stove in the apartment. Alvarado knew that when she cleaned the top
of the stove with a vacuum, the vacuum would extinguish the pilot light. She had no matches
and decided to light the “candle” from the pilot light, vacuum the oven, and then relight the
pilot light with the candle. Alvarado lit the de vice and it exploded, blowing off most of her right
hand. Prior to the accident, Alvarado had no experience with any firework-type device.
Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script) | 303

During his eleven prior years of employment with Oakbrook, Keleher had not discovered
or heard of anyone discovering fireworks in a property managed by Oakbrook, but he did
know that hazardous and flammable materials had been found in an occupied apartment
*758 in 1996. There is no e vidence that any abandoned firework had ever been discovered in
a Meriter-owned or Oakbrook-managed apartment. Neither party presented evidence of the
frequency with which hazardous materials are left behind by vacating tenants.
Having read these additional facts, do any new questions or factors arise that seem relevant for the
court’s analysis?
Note 2. In its ruling, the lower court (2002 ruling) stresses its holding is case-specific, and it intends
its impact to be narrow.
“This case involves a highly unusual *770 cause of an injury to a cleaning person employed
by a contractor. We do not hold that landlords have no obligation to assure that apartments
are hazard-free prior to the time ne w tenants take occupancy. Neither do we suggest that
landlords never have an obligation to search for hazardous materials. To take one of many
possible e xamples, it might be that a landlord could be found negligent and held liable for
failing to inspect for hazards if the landlord knew a vacating tenant was involved in the reckless
use of firearms. Given this knowledge, the landlord might properly be he ld liable for permitting
new tenants with children to take occupancy without a thorough inspection.”
Do you think it would have had a narrow impact as applied in practice, had it not been reversed on
appeal? From what you understand so far about duty and breach, should a ruling pertaining to duty be
highly fact-specific? Alvarado v. Sersch, 257 Wis. 2d 752, 756-758, 760-761, 768–71 (2002), rev’d, 262 Wis.
2d 74.
Note 3. Should Alvarado be able to rely on the apartment managers’ inspection for hazardous materials
before allowing cleaners on the premises? Should the managers be required to provide hazardous
materials training to every plumber or electrician or cleaner it hires, just in case the y encounter
hazardous materials onsite? (The

court below formed and answered both of these questions

succinctly: “Certainly not.”) What do you think it is reasonable for contractors and cleaners to expect
under such circumstances? Might your answer depend on whether alternative
compensation for injury were available?

Check Your Understanding – Set 24

304 | Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script)

source
s of

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=58#h5p-71

Expand On Your Understanding – Socratic Script: Alvarado v. Sersch (Part 1)

Question 1. Which justice’s view of duty from Palsgraf do you see represented in the case? How does
Alvarado (2003) both build on and extend that reasoning from Palsgraf? Find textual evidence for your
view in the language of the case.

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=58#h5p-72

Question 2. In Wisconsin, how are duty and public policy formulated in relation to negligence?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=58#h5p-73

Question 3. The appellate court does not make entirely clear why Ms. Alvarado’s children are parties to
the suit. Based on what you have been learning about tort law thus far, can you guess why they are
joined?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=58#h5p-74

Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script) | 305

Check Your Understanding – Set 25

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=58#h5p-75

Expand On Your Understanding – Socratic Script: Alvarado v. Sersch (Part 2)

Question 4. What rationales does the dissenting opinion offer for her critique of the majority opinion in
Alvarado?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=58#h5p-76

Question 5. Do the dissent’s concerns seem plausible to you? What concerns would arise from following
the dissent’s approach? Normatively, which set of concerns is preferable, assuming no perfect solution is
available?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=58#h5p-77

Question 6. Notice how the dissent describes the facts of the case. How does Justice Sykes’ description
frame the situation and how is that relevant to her legal analysis?

306 | Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script)

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=58#h5p-78

Reflection Essay

What are the normative implications of a ruling like this one? Consider the industries and sub-industries
involved and the different socioeconomic statuses of the various parties. Descriptively, Alvarado is
bringing this suit against the owner of the apartment complex. Normatively, do you think it would be
preferable for if she were able to recover for her injuries directly through her employer (through
worker’s compensation), or in the alternative, through the retailer of the fireworks/rocket on a theory of
absolute or strict liability for explosives? What considerations would shape your thinking on this
question? Does Alvarado deserve recovery here regardless of the tort doctrine or mechanism required to
produce it? Or do countervailing concerns about the scope of tort liability justify withholding
compensation on these facts, as Cardozo would have done based on Palsgraf?

Negligence: Breach (Issues of Proof)
Determining whether conduct was reasonable can involve complicated questions of evidence and
proof. In some torts cases, evidence has literally been destroyed in a fire or e xplosion, thus making
the case harder to make in court. In many other cases, there are missing facts or mysteries regarding
how an accident came to happen. In a significant number of cases, plaintiffs must resort to using
circumstantial evidence to build a case regarding the unreasonableness of the conduct. Over time,
certain legal devices have arisen to provide shortcuts or to allow the parties to shift the burden of
proof back and forth on certain points. One of the se is the admissibility of industry standards or
“custom evidence” that tends to establish what others similarly situated believed to be reasonable
versus unreasonable.

Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script) | 307

Trimarco v. Klein, Court of Appeals, New York (1982)
(436 N.E.2d 502)
After trial by jury in a ne
gligence

suit for personal injuries, the plaintiff, Vincent N. Trimarco,

recovered a judgment of $240,000. A sharply divided Appellate Division, 82 A.D.2d 20, 441 N.Y.S.2d
62, having reversed on the law and dismissed the complaint, our primary concern on this appeal is
with the role of the proof plaintiff produced on custom and usage. The ultimate issue is whe ther he
made out a case. The controversy has its genesis in the shattering of a bathtub’s glass enclosure door
in a multiple dwelling in July, 1976. Taking the testimony most favorably to the plaintiff, as we must in
passing on the presence of a prima facie case, we note that, according to the trial testimony, at the
time of the incident plaintiff, the tenant of the apartment in which it happened, was in the process of
sliding the door open so that he could exit the tub. It is undisputed that the occurrence was sudden
and unexpected and the injuries he received from the lacerating glass most severe.
The door, which turned out to have be en made of ordinary glass variously estimated as one sixte enth
to one quarter of an inch in thickness, concededly would have presented no different appearance to
the plaintiff and his wife than did tempered safety glass, which their uncontradicted testimony shows
they assumed it to be. Nor was there any suggestion that defendants ever brought its true nature to
their attention.
Undeveloped in the trial record is the source of a hospital record entry which ascribed the plaintiff’s
injuries to a “fall through his bathroom glass door”. Obviously, this may have be en taken into account
by the jury, since its verdict called for a reduction of its $400,000 gross assessment of damages by
2

40% to account for contributory negligence.

As part of his case, plaintiff, with the aid of expert testimony, developed that, since at least the
early 1950’s, a practice of using shatterproof glazing materials for bathroom enclosures had come
into common use, so that by 1976 the glass door here no longer conformed to accepted safety
standards. *504 This proof was reinforced by a showing that over this period bulletins of nationally
recognized safety and consumer organizations along with official Federal publications had joined in
warning of the dangers that lurked when plain glass was utilized in “hazardous locations”, including
3

“bathtub enclosures”. [***] And, on examination of the defendants ‘managing agent, who long had
enjoyed extensive familiarity with the management of multiple dwelling units in the New York City
area, plaintiff’s counsel elicited agreement that, since at least 1965, it was customary for landlords who
had occasion to install glass for shower enclosures, whether to replace broken glass or to comply with
the request of a tenant or otherwise, to do so with “some material such as plastic or safety glass”.

2. The chart had been put in evidence in unredacted form as part of the plaintiff’s medical proof.
3. The organizations included the National Safety Council, the American National Standards Institute and the Consumer
Safety Commission. One of the governmental publications, issued by the United States Health Department, was entitled
Glass Door Injuries and Their Control and another, emanating from the United States Product Safety Commission, was
entitled Hazard Analysis—Injuries Involving Architectural Glass.
308 | Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script)

In face of this record, in essence, the rationale of the majority at the Appellate Division was that,
“assuming that there e xisted a custom and usage at the time to substitute shatterproof glass” and that
this was a “better way or a safer method of enclosing showers” (82 A.D.2d, p. 23, 441 N.Y.S.2d 62), unless
prior notice of the danger came to the de fendants either from the plaintiff or by reason of a similar
accident in the building, no duty devolved on the defendants to replace the glass either under the
4

common law or under section 78 of the Multiple Dwelling Law. [***]
Which brings us to the well-recognized and pragmatic proposition that when “certain dangers have
been removed by a customary way of doing things safely, this custom may be proved to show that [the
one charged with the dereliction] has fallen below the required standard.” [c] Such proof, of course, is
not admitted in the abstract. It must bear on what is reasonable conduct under all the circumstances,
the quintessential test of negligence.
It follows that, when proof of an accepted practice is accompanied by evidence that the defendant
conformed to it, this may establish due care (Bennett v. Long Is. R. R. Co., 163 N.Y. 1, 4 [custom not
to lock switch on temporary railroad siding during construction]), and, contrariwise, when proof of
a customary practice is coupled with a showing that it was ignored and that this departure was a
proximate cause of the accident, it may serve to establish liability (Levine v. Blaine Co., 273 N.Y. 386,
389 [custom to equip dumbwaiter with rope which does not splinter]). Put more conceptually, proof
of a common practice aids in “formulat[ing] the general expectation of society as to how individuals
will act in the course of their undertakings, and thus to guide the common sense or expert intuition of
a jury or commission when called on to judge of particular conduct under particular circumstances”
(Pound, Administrative Application of Legal Standards, 44 ABA Rep, 445, 456–457).
The source of the probative power of proof of custom and usage is described differently by various
authorities, but all agree on its potency. Chief among the rationales offered is, of course, the fact
that it reflects the judgment and experience and conduct of many (2 Wigmore, Evidence [3d ed.],
§ 461; Prosser, Torts [4th ed.], § 33). Support for its relevancy and reliability comes too from the
direct bearing it has on feasibility, for its focusing is on the practicality of a precaution in actual
operation and the readiness with which it can be employed (Morris, Custom and Negligence, *506 42
Col. L. Rev. 1147, 1148). Following in the train of both of the se boons is the custom’s exemplification
of the opportunities it provides to others to learn of the safe way, if that the customary one be.
(See Restatement, Torts 2d, § 295A, Comments a, b.)
From all this it is not to be assume d customary practice and usage ne ed be universal. It suffices that
it be fairly well defined and in the same calling or business so that “the actor may be charged with
knowledge of it or negligent ignorance” (Prosser, Torts [4th ed.], § 33, p. 168; Restatement, Torts 2d, §
295A, p. 62, Comment a).
However, once

its existence

is credited, a common practice

or usage

is still not ne cessarily a

conclusive or e ven a compelling test of negligence (1 She arman & Redfield, Negligence [rev ed], § 10).

4. Subdivision 1 of section 78 of the Multiple Dwelling Law provides: “Every multiple dwelling * * * and every part thereof *
* * shall be kept in good repair. The owner shall be responsible for compliance with the provisions of this section”.
Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script) | 309

Before it can be, the jury must be satisfied with its reasonableness, just as the jury must be satisfied
with the reasonableness of the behavior which adhered to the custom or the unreasonableness of that
which did not (see Shannahan v. Empire Eng. Corp., 204 N.Y. 543, 550). After all, customs and usages
run the gamut of merit like e verything else. That is why the question in each instance is whe ther
it meets the test of reasonableness. As Holmes’ now classic statement on this subject expresses it,
“[w]hat usually is done may be e vidence of what ought to be done, but what ought to be done is fixed
by a standard of reasonable prudence, whether it usually is complied with or not” (Texas & Pacific Ry.
Co. v. Behymer, 189 U.S. 468, 470).
So measured, the

case

the

plaintiff presented, even without the

[Editor’s insertion: improperly

admitted evidence concerning a statute that applied to new installations of glass and not existing
glass] *** was enough to send it to the jury and to sustain the verdict reached. The e xpert testimony,
the admissions of the defendant’s manager, the data on which the professional and governmental
bulletins were base d, the e vidence of how replacements were handle d by at least the local building
industry for the be tter part of two decades, these in the aggregate e asily filled that bill. Moreover,
it was also for the jury to decide whe ther, at the point in time whe n the accident occurred, the
modest cost and ready availability of safety glass and the dynamics of the growing custom to use it
for shower enclosures had transformed what once may have be en considered a reasonably safe part
of the apartment into one which, in the light of later developments, no longer could be so regarded.
Furthermore, the charge on this subje ct was correct. The Trial Judge placed the e vidence of custom
and usage “by others engaged in the same busine ss” in proper perspective, when, among other things,
he told the jury that the issue on which it was received was “the reasonableness of the defendant’s
conduct under all the circumstances”. He also emphasized that the testimony on this score was not
conclusive, not only by saying so but by explaining that “the mere fact that another person or landlord
may have use d a better or safer practice does not establish a standard” and that it was for the jurors
“to determine whether or not the evidence in this case does establish a general custom or practice”.
Nevertheless, we reverse and order a new trial because the General Business Law sections [on future
installations] should have be en excluded. True, if a statutory scheme intended for the protection of
a particular class, as is the one he re, does not expressly provide for civil liability, there is responsible
authority for the proposition that a court may, in furtherance of the statutory purpose, read in such
an intent (see Martin v. Herzog, 228 N.Y. 164, 168; Restatement, Torts 2d, § 286; see, generally, James,
Statutory Standards and Negligence in Accident Cases, 11 La. L. Rev. 95). Be that as it may, the fact is
that the statutes here protected only those tenants for whom shower glazing was installed after the
statutory effective date. Plaintiff was not in that class.
Thus, while ne w installations made during the three-year interval between July 1, 1973, the effective
date of the ne w General Business Law provisions, and July, 1976, when plaintiff was injured, could
have counted *507 numerically in the totality of any statistics to support the e xistence of a developing
custom to use

safety glass, defendants’ objection to the

sustained. Without belaboring the point, it cannot be
the

adversarial conflict, did not prejudice

the

statutes themselves should have

said that the

statutes, once

be en

injected into

de fendants. Nor is it any answer to suggest that

balancing the risk of prejudice against the asse rted relevancy of the statutes here was a supportable

310 | Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script)

discretionary judicial act. Unlike he arsay, which at times may be rendered admissible by necessity, the
other proof of custom here eliminates the possibility of this justification.
For all these reasons, the order should be reversed and a new trial granted. In so ruling, we se e no
reason for a retrial of the damages issue. Instead, the ne w trial will be confined initially to the issue of
liability and, if plaintiff once again should succeed in proving that defendants were negligent, to the
issue of apportionment of fault between the parties (cf. Ferrer v. Harris, 55 N.Y.2d 285).
Accordingly, the case should be remitted to Supreme Court, Bronx County, for further proceedings in
accordance with this opinion.
Order reversed, with costs, and case remitted to Supreme Court, Bronx County, for a new trial in
accordance with the opinion herein.
Note 1. How does the court treat the e vidence of industry custom, as well as the prescriptions by the
legislature for the use of improved safety measures regarding glass in dwellings? What is its relevance
to the plaintiff’s case?
Note 2. Why is the plaintiff’s conduct with respect to use of the shower raised?
Note 3. The court lists several rationales for the admission of custom evidence. What are they?
Note 4. Custom evidence as a “sword.” Trimarco clarifies that use

of custom evidence

is not

conclusive (“common practice or usage is still not ne cessarily a conclusive or e ven a compelling test
of negligence… Before it can be, the jury must be satisfied with its reasonableness.”) What effect does
custom evidence have, in that case? Why is its use potentially powerful for the plaintiff?
Consider that case law continues, as Trimarco did, to cite this long-approved dicta: “What usually is
done may be e vidence of what ought to be done.” Texas & P.R. Co. v. Behymer, 189 U.S. 468, 470 (1903).
Beving v. Union Pac. R.R. Co., 2020 WL 6051598, at *4 (S.D. Iowa Sept. 8, 2020)
Note 5. Custom evidence as a “shield.” In Trimarco the court seems to suggest that compliance with
custom could provide a defense: “when proof of an accepted practice is accompanied by evidence
that the defendant conformed to it, this may establish due care (Bennett v. Long Is. R. R. Co., 163 N.Y.
1, 4, 57 N.E. 79 [custom not to lock switch on temporary railroad siding during construction]). Despite
Trimarco’s dicta regarding compliance with custom, it is rarely successfully used as a shield against
liability. Merely showing that one didn’t adopt a precaution, but neither did anybody else in your
industry does not make that conduct reasonable. That was the scenario in the next case (excerpted).
Note 6. The T.J. Hooper, Second Circuit Court of Appeals (1932)
If evidence of customary practices can be use d to establish breach, what happens if an industry is
rapidly emerging (and norms aren’t yet settled, or behavior is unusually risky)? What about if the
industry is one that evolves frequently and norms are hard to catalog? What if social changes to
conduct or business practices end up meaning that an entire industry has failed to take the proper
precautions?

Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script) | 311

Judge Le arned Hand, an extremely important jurist on the Se cond Circuit, faced a dispute over losses
of coal that plaintiff’s barges sustained when the defendant’s tug boats, towing the barges, were lost
in a storm off the Jersey Coast. Had the tugboats been equipped with radios, the crew could have
received a widely publicized warning from the Weather Bureau and made for a safe haven in the
Delaware Breakwater. Defendant pointed to industry custom to argue that barge lines didn’t provide
radio receiving sets to crews. Learned Hand upheld the lower court’s verdict against the defendants,
writing: “[I]n most cases reasonable prudence is in fact common prudence; but strictly it is never its
measure; a whole calling may have unduly lagged in the adoption of new and available de vices. It never
may set its own tests, however persuasive be its usages. Courts must in the end say what is required;
there are precautions so imperative that even their universal disregard will not excuse their omission.”
The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932).
Can you think of areas of e
volving technology, or changing practices around privacy and data
collection, that would illustrate the ne ed for a rule like this one ? Professor Jennifer E. Rothman
conside rs the issue in The Que stionable Use of Custom in Intellectual Property, 93 Va. L. Rev. 1899 (2013):
“Defenses to uses of others’ IP are generally rejected when deemed, either explicitly or implicitly,
“unreasonable,” and courts frequently defer to customary practices to determine whether a use is
reasonable. [fn] It is not easy to define what constitutes a reasonable use of another’s IP. A reasonable
use is not the same as a just or moral use; instead, like the reasonable person standard in tort
law, it asks more generally what is appropriate in a given circumstance, not what is optimal or
ethical. Because it is difficult to determine when a use of another’s IP is reasonable and there is little
available guidance, courts often use custom as a shortcut or proxy for such determinations.” Rothman
worries that courts will entrench suboptimal behaviors simply because the y are customary (no matter
whether they are reasonable) and fail to consider “reasonable” newer practices simply because the y
are not yet customary. How should rapidly evolving areas of law proceed with respect to custom
evidence?

Circumstantial Evidence
A Primer on Burdens of Proof: Eventually, law students learn about the burden of proof in classes
such as civil procedure and criminal law. However, in most law schools, students encounter and
issues pertaining to the burden of proof in tort law before the y have gotten much past questions
of jurisdiction in civil procedure. These issues are important to tort law yet assumed rather than
explained in the

cases assigned. This brief explanation is meant as a stopgap to assist your

understanding in torts. The burden of proof is the party’s obligation to prove their case, but it applies
to each claim or defense relevant to winning the case overall.
First, the burden of proof differs in criminal and civil cases. You’ve certainly heard the burden of
proof in criminal cases since it’s so often evoked in legal dramas as well as in news accounts of
significant criminal trials: the state must prove defendants’ guilt beyond a reasonable doubt. Lawyers
tend to think of this as requiring something like a 90-95% likelihood of certainty. Note that in criminal
312 | Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script)

cases, the prosecutor is proving guilt. In civil cases, it is appropriate to use “liability” instead. Although
older cases still sometimes state that a party is “guilty of negligence,” be attentive to the confusion
it could create to use the te rms guilt and liability interchangeably and stick with liable inste ad. In
most cases, civil claims must be proven by a preponderance of the evidence, which is more like
51%. The standard requires that the account be more likely than not to have happened in the way
the moving party claims. There is a third standard somewhere in be tween, known as the clear and
convincing standard. Legislators and courts can use this in instances in which they wish to ratchet
up the difficulty of proving something, to signal some sort of protection or a policy emphasis in the
law.
Second, the burden of proof includes different aspects: the burdens of production and persuasion.
Both parties carry the burden of persuasion and it never “shifts” between them; if the party cannot
pe rsuade the judge or factfinder to accept their account as the likelier one, they will lose. The burden
of production consists of the party’s obligation to present sufficient evidence on a claim that they can
win on that issue. Quite often the plaintiff will win on this issue if the opposing party does nothing to
rebut or defeat that evidence. It is sometimes called the “burden of going forward.” This begins with
the ple adings: the plaintiff introduces all her evidence and the judge must de cide whe ther the plaintiff
has offered enough evidence that the jury could conclude that the defendant was negligent. If the
plaintiff can do this, she has made out a prima facie case, that is a case in which the jury does not have
to side with the plaintiff, but could do so. Then the defendant responds with an answer attempting to
produce enough evidence that the jury could not conclude in the plaintiff’s favor.
The burden of production shifts; think of it like a te nnis game in which a ball (the burden) may travel
back and forth between the parties or be caught in the ne t, thus ending the play on a given issue (and
possibly the entire case). For example, if a party, X, bears the burden of proving that another party,
Y was negligent in their conduct and caused X’s injuries, X will lose the entire case if X cannot bear
the burden of production on the e xistence of a duty running from Y to X. Perhaps X can plead a duty
and Y cannot rebut it. As the moving party, X must next prove breach, causation and damages. On the
questions of breach and causation, in particular, they may be many smaller factual questions in which
gaps in the factual record require filling. The plaintiff’s case might fail if these gaps mean she cannot
establish what the defendant did to cause her harm. In the materials that follow, you will learn several
burden-shifting devices that assist in shifting the burden from one party to another so that the case
will not fail too early. Sometimes the burden shifts, for instance, from the plaintiff who must ordinarily
prove breach by the defendant and causes the defendant to have to disprove breach. Burden-shifting
devices are one of the ways in which parties can prove or defend against negligence claims given the
complexity and factual gaps that arise with frequency in the fact patterns in torts cases.
Using circumstantial evidence is not formally a burden-shifting device, but it is one of the me chanisms
by which the law may slightly relax the burden of production in cases where direct or real evidence
is unavailable. A party may satisfy their burden of production on an issue only to have the opposing
party successfully rebut it, of course, but the theory holds that it is fairer to force this e xchange than
it would be to prematurely end a claim merely because the plaintiff lacked particular kinds of evidence
at the outset.
Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script) | 313

In a subset of torts cases—particularly cases of injury caused by filling on a slippery or poorly
maintained floor—plaintiffs may be unable to prove the source of their injury or to identify how
the defendant breached their duty of due care. In traditional cases, a plaintiff may prove their case
using “real evidence” such as physical objects, forensic data, documentary evidence including vide o
recordings or employee

logs. Or the y may offer proof in the

form of “direct e
vidence” such as

eyewitness testimony or deposition of the defendant and related parties. Sometimes, however, these
forms of evidence are unavailable or only partially so and the plaintiff must in some other way produce
sufficient circumstantial evidence that the jury can draw inferences of the defendant’s negligence. The
outcomes in these cases hinge on the strength and sufficiency of the e vidence. Also, fruit. The ne xt
cases focus on slippery fruit (and other foods) that may cause injury.

Goddard v. Bos. & M.R. Co., Supreme Judicial Court of Massachusetts
(1901)
(179 Mass. 52) (Chief Justice Holmes)
The banana skin upon which the plaintiff stepped and which caused him to slip may have be en
dropped within a minute by one of the persons who was leaving the train. It is unnecessary to go
further to decide the case.
Exceptions overruled.
Note 1. The plaintiff was injured in a “slip-and-fall” accident which is sometimes considered the
“bread-and-butter” action of tort law given the frequency with which such claims continue to be
brought. They are usually settled but sometimes involve significant injury or small but important
points of law. They are also responsible for many safety measures taken by stores and other premises
owners who fear liability and can pass the costs of precautions on to their consumers via raising
the price of their goods, tickets or services. However, tort law does not seek to reduce risks to
zero and premises owners are not the “insurers” of all who enter on their premises. How should
courts dete rmine the point at which liability for injury attaches? What sorts of inferences should be
permitted when customers appear blameless but cannot explain the reasons for the accident that
occurred? Banana peels are just the beginning.

Scaccia v. Bos. Elevated Rail Co., Supreme Judicial Court of Massachusetts
(1944)
(317 Mass. 245)
[***] When the plaintiff boarded the defendant’s motor bus at Cleary Square in the Hyde Park section
of Boston at noon on October 2, 1934, it could have be en found that there was on the floor in the
aisle, near the front of the bus, a banana *252 peel ‘four inches long, all black, all pressed down, dirty,
314 | Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script)

covered with sand and gravel, dry and gritty looking.’ When the plaintiff left the bus nine minute s later,
she slippe d and fell on the banana peel, which remained in the same position. Only three passengers
were in the bus during the trip. It could have be en found that Cleary Square was one terminus of the
line, and that the bus remained there without passengers in it for ‘a minute or two’ at least. The bus
was operated by one man.
The question is whether the foregoing basic facts warrant an inference of negligence on the part of
the defendant or its operator. No one would be likely to enter the bus except servants of the defendant
and passengers. In the ordinary course of events, no passenger would carry into the bus a banana pe el,
or a banana, in the condition shown by the agreed facts. Such a condition naturally would result from
lying a considerable time on the floor. We think that it could be found that the pe el had remained on
the floor of the bus so long that in the e xercise of due care the de fendant should have discovered and
removed it. [cc]
A number of cases in which the unexplained presence on floors or stairs of discarded parts of fruit
was held insufficient evidence of negligence may be distinguishe d. In Goddard v. Boston & M. R. R.,
179 Mass. 52, the banana pe el did not appear to be other than fresh. In Mascary v. Boston Elevated R.
Co., 258 Mass. 524 where a banana pe el was much like that described in the Anjou case, it lay on stairs
leading from the street, and might have be en recently thrown there by a child in play. In McBreen v.
Collins, 284 Mass. 253, and Newell v. Wm. Filene’s Sons Co., 296 Mass. 489, the plaintiff fell on a lemon
or orange pe el that showed no marks of age comparable to those in the present case. In other cases
the cause of the injury was an apple core or other fruit which would become discolored sooner than a
banana peel would become in the condition described in the evidence in the present case. [cc]
In accordance with the terms of the report, judgment is to be entered for the plaintiff as upon a finding
for $750.
So ordered.
Note 1. Why is the court discussing the condition of the banana (or lemon or orange) peel?
Note 2. What implicit theory does this observation address, when the court notes “no passenger
would carry into the bus a banana peel, or a banana, in the condition shown by the agreed facts”?
Note 3. Without evidence that a child actually has thrown the pe el in this case, what purpose does
it serve for the court, in dicta about an earlier precedent, Mascary, to add that the banana pe el
“might have been recently thrown there by a child in play”?

McDonald v. Safeway Stores, Inc., Supreme Court of Idaho (1985)
(109 Idaho 305)
On April 17, 1981, at approximately 1:00 p.m., Alta McDonald entered a Twin Falls Safeway Store to
make a purchase. As she walked down the aisle, her foot went out from under her and she fell, landing
Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script) | 315

on her right hip. Safeway had been conducting an ice cream demonstration since 10:00 a.m. that
day. The substance that Mrs. McDonald slipped on was cream colored and appeared to be melted
ice cream. As a result of the fall, Mrs. McDonald suffered severe injuries, requiring the replacement
of a total hip transplant which she had received shortly before the fall. The reafter, Alta McDonald
brought the action for damages for injuries she had sustained, her husband joining with a claim for
loss of consortium, services, care, comfort and companionship. A jury trial resulted in a special verdict
finding Safeway’s negligence at 100% and awarding Alta McDonald damages of $196,000 and Donald
McDonald damages of $35,000.
Safeway first assigns error to the trial court’s denial of its motion for summary judgment, asserting
that reasonable minds could not diffe r on the issue of whether the actions of the Safeway employees
were reasonable unde r the circumstances. For reasons which follow we conclude that the trial court
properly denied the motion.
The complaint alleged, in part:
That on or about Friday, April 17, 1981, at some time prior to plaintiff Alta McDonald’s arrival
at said store defendant negligently caused and/or permitted a slippery substance consisting
of melted ice cream to be deposited and to remain *307 on the floor of said store in a place
allowed for the passage of plaintiff and other customers and shoppers.
That defendant knew or reasonably should have known that slippery substances, including
ice cream, would foreseeably be dropped by passing shoppers and would accumulate on
the floor and would endanger the safety of persons walking on the floor. The melted ice
cream had been dispensed negligently by the defendant and had been negligently allowed
to remain on the floor for such a period of time imme diately preceding the accident that
persons of ordinary prudence in the position of defendant knew or reasonably should have
known of the same , and in the e xercise of ordinary care would have remedied the same,
prior to the happening of the accident herein alleged. In spite of defendant’s notice of the
presence of the melted ice cream on the floor, defendant negligently failed and omitted to
remove the slippe ry substance within a reasonable time and faile d to take any precaution to
prevent injury to plaintiff and other invitees that foreseeably would be injured. The accident
and injury hereinafter alleged were proximately caused by the negligence of defendant in
causing the ice cream to be dispensed in a manner in which it was foreseeable that it would
cause injury to others, and in causing and permitting the melted ice cream to remain on said
floor and in failing to take reasonable precautions to prevent injury to plaintiff or to warn of
the dangerous, unfit or unsafe conditions.
In its memorandum opinion denying Safeway’s motion for summary judgment, the trial court stated:
In most supermarket slip and fall cases the plaintiff merely slips on an item or slick spot,
the presence of which cannot be e xplained by anyone. Normally, the hazard exists during
the normal business operation of the supermarket. Naturally, in those cases, the focus of
attention is on the knowledge, actual or constructive, of the market that the hazard involved
was on the floor.
316 | Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script)

Here

we

have

a substantially different situation. Three separate demos were being

conducted on the premises of Safeway where food and napkins were being handed out
to customers, including infants. This, giving plaintiff the benefit of all inferences, could
have created an unreasonable risk of harm to people, even if the store had very efficient
clean-up procedure s. The mode of operation of the ice cream demo on a very busy Good
Friday, combined with the abnormally large crowds and other demos, in and of itself could
constitute an act of negligence on the part of defendant. It is also possible that Safeway
should have taken super extraordinary supervisory precautions considering the mixture of
ice cream and infants.
A jury question is presented regarding Safeway’s negligence.
Safeway argues that the McDonalds’ claim of negligence was based on two distinct theories, the first
being that the Safeway employees had actual or constructive knowledge of the dangerous condition
and failed to remedy it and the se cond being that by permitting three separate demonstrations on a
busy sales day and furnishing ice cream to infants, Safeway created a foreseeable risk of harm to its
customers. Safeway contends that it was entitled to an order of summary judgment on the negligence
claim regardless of the theory upon which the McDonalds relied.
[***] Clearly, as to the first theory of negligence, the record before the trial court permitted the
reasonable inference that Safeway knew or should have known of the dangerous condition, that it had
sufficient time to remedy the situation and that in the e xercise of *308 reasonable care, its employees
should have cleaned the spill.
Safeway contends that Idaho law does not permit a plaintiff to recover under the second negligence
theory, that is, negligent creation of a foreseeable risk of harm. That theory does not require that
the owner or possessor of land have actual or constructive knowledge of the dangerous condition.
Safeway insists that in dispensing with the knowledge requirement, the se cond theory is inconsistent
with Idaho law regarding the liability of an owner or possessor of land for injuries to an invitee. In
support of this proposition Safeway cites Tommerup v. Albertsom’s, Inc., 101 Idaho 1 (1980) wherein we
stated:
The law is well settled in this state that to hold an owner or possessor of land liable
for injuries to an invitee caused by a dangerous condition existing on the land, it
must be shown that the owner or occupier knew, or by the e xistence of reasonable
care, should have known of the existence of the dangerous condition.
In Tommerup, the plaintiff-appellant Mrs. Tommerup, had slipped and fallen on a cupcake wrapper
which apparently had been discarded in the parking lot near the doorway of a grocery store. The
record was devoid of evidence indicating that the condition which caused Mrs. Tommerup’s injury
was anything other than an isolated incident. In Tommerup, we distinguishe d the “isolated incident”
situation from circumstances where an alleged tortfeasor is charged with having actively created a
foreseeable risk of danger in its course of business [***]. Certainly, the trial court could not have
concluded as a matter of law that the presence of the ice cream on the floor was merely an isolated
incident. Hence, it did not err in denying Safeway’s motion for summary judgment.
Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script) | 317

Safeway next complains that the

trial court erroneously permitted the

McDonalds to introduce

certain opinion testimony *309 and expert testimony at trial. Safeway contends that the McDonalds’
counsel improperly elicited “expert testimony” from James Anderson, the Safeway’s store manager.
This “expert testimony” consists of the following exchange:
COUNSEL: Wouldn’t you agree with me, Mr. Anderson, that two hours is more than ample time to
insure cleaning up a spill like an ice cream spill and preventing an accident like this?
MR. ANDERSON: Yes.
The question and answer were not obje cted to at trial and the obje ction cannot be raised for the
first time on appe al. [c] [***] The question posed by McDonalds’ counsel properly elicited testimony
tending to rebut Anderson’s general line of testimony that the store had exercised due care.
[***] Safeway next maintains that the trial court erred in allowing McDonalds’ counsel to conduct
an “experiment” during closing argument. At the opening of closing argument, McDonalds’ counsel
unveiled a carton of Lucerne ice cream and placed a spoonful on a paper plate ne xt to a thermometer
and left it on counsel table in full view of the jury during his argument. When Safeway’s counsel
inquired as to what the

McDonalds’ counsel was doing, the

McDonalds’ counsel stated, “I’m

conducting an experiment. I’m not sure what the results are going to be, but I think it’s proper
argument.” Safeway’s counsel objected. The trial court overruled the obje ction, concluding that the
“experiment” was an allowable, demonstrative argument. *310 Safeway submits that the “experiment”
was not supported by the e vidence, and that the use of the ice cream during closing argument should
not have be en allowed unless it was supported by evidence already admitted. Moreover, Safeway
contends that the trial court should have, at a minimum, cautioned the jury that the “experiment”
was not evidence and should not be given any consideration in reaching its decision. Clearly, the
“experiment” was not proper evidence; however, that fact may not have be en apparent to the jury. It
is generally stated in 75 Am.Jur. Trials § 197 (1974) that:
It appears to be entirely legitimate for counsel in addressing a jury to use, by way
of illustration or elucidation, diagrams and maps or other visual aids not put in
evidence, provided that the jury understands that they are employed merely for
such purposes and are not e vidence in any sense. However, the use of charts or
diagrams by counsel has been held not permissible in the abse nce of adequate
foundation in the form of material actually introduced into evidence.
In Meissner v. Smith, 94 Idaho 563, 494 P.2d 567 (1972), we approved the use of charts in closing
argument so long as the record did not reflect any unfair, misleading or inflammatory tactics by
counse l in the use of the chart. Research has revealed no case on point and counsel for both parties
were

unable

to provide

authority for their respective

positions on this matter. Nonetheless, we

conclude that the “experiment” should not have be en allowed, in that experiments are admissible as
evidence only during the e videntiary phase of the trial, whe n the opposing party has the opportunity
for objection to foundation, cross-examination, and rebuttal. We strongly admonish counsel against
such antics and would order a declaration of mis-trial but for the fact that a complete review of the
record reflects that the effect and purpose of the e xperiment was only to establish that even a small
318 | Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script)

chunk of ice cream requires an hour or two to fully melt at room temperature. Since two witnesses
had testified to that phenomenon and since Safeway did not dispute it, the error was harmless and
cannot be said to have changed the result of the trial. Appellants have the burden to show prejudicial
error and this they have faile d to do. [c] Because we conclude that the result would have be en the
same had this “experiment” not taken place, we do not de em the error to be cause for reversal. [c]
[***]
In support of its motion for a new trial, Safeway alleged the following specific errors:
(1) The ice cream experiment was improper;
(2) The jury verdict was excessive and unreasonable; *311
(3) The verdict was contrary to the evidence; [***]
[The] asserted grounds in support of the ne w trial motion have be en previously addressed in this
opinion. We therefore affirm the judgment. Costs to respondents. No attorney fees.
Note 1. In your own words, how would you define

“actual knowledge” versus “constructive

knowledge”?
Note 2. What is the practical difference be tween the two theories of negligence: (1) failing to remedy
a dangerous condition of which Safeway had actual or constructive knowledge versus (2) creating
a foreseeable risk of harm by permitting three separate demonstrations on a busy sales day and
furnishing ice cream to infants? Why does it matter to distinguish the theories?
Note 3. Without employee testimony, how do you think a court should determine whether there was
“sufficient time” to remedy a dangerous situation? Is time the right proxy for constructive notice?
What others can you imagine working well?
Note 4. If tort law forced stores to internalize the costs of all possible accidents on its premises,
it would effectively convert such entities into “insurers” of the wellbeing of customers. This could
overdeter the store and misalign the incentives for consumers to take their own proper precautions. A
rationale response to increasing the scope of storeowner liability is to take increased precautions and
pass the costs of those on to the consumer. Consider the following case in which the store was not
held liable for a customer’s slip and fall on a slippery floor the source of whose wetness the plaintiff
could not adequately prove; the court describes an employee’s testimony, in which “she estimated that
98 percent of her time was spent walking the floors of the store looking for hazards. She also testified
that any employee who se es a hazardous condition on the floor is responsible for either cleaning it up
or getting someone else to do so.” Another employee corroborated that and further testified:
“Q [ATTORNEY FOR APPELLANT]: Now, in terms of whether things were on the floor, were
you required or were you supposed to patrol around the store and look for anything that could
probably [sic] be on the floor?
A: Well, we were always walking around the store, pretty much at all times except when we
were on break. So you don’t have an assigne d route, but yes, we were always walking around
the floor.
Q: And then if you noticed something on the floor, you were suppose d to take care of it right
Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script) | 319

away?
A: Yes.”
Maans v. Giant Of Maryland, L.L.C., 161 Md. App. 620, 631 (2005)
Does this strike

you as the

optimal le ve
l of precaution in practice? Might some

precautionary

practices develop in order to defeat legal claims rather than out of a conviction that they will optimize
for safety and employee efficiency?
Note 5. Dangerous Methods of Operation. Are you persuaded by the distinction of “isolated incidents”
versus “continuous or recurring” conditions? In nearly two dozen jurisdictions, some version of a
“recurring condition” rule has arisen to cover situations in which a business regularly confronts
hazards associated with its “mode

of operation.” Kelly v. Stop & Shop, Inc., 281 Conn. 768, 783

(2007)(noting that there is a “distinct modern trend favoring the rule, and it appears that most courts
that have considered the rule have adopte d it”; Kelly reversed judgment for the defendant on the
grounds that plaintiff should be allowed to adopt the mode of operation theory of negligence after
she slippe d on a “wet and slimy” piece of lettuce and found herself on the floor next to the cottage
cheese and other fruit she’d been serving herself from the salad bar. While she lay there, an employee
appeared at her feet to sweep up the cottage che ese and fruit. Id. at 253). This doctrine has often been
justified by the growing number of self-serve restaurants or food service points in supermarkets. One
of the early and influential cases involved pizza.
In Jasko v. F. W. Woolworth Co., 177 Colo. 418 (1972), for example, the plaintiff had slipped and fallen on
a slice of pizza that had wound up on the terrazzo floor of the defendant’s store. The shop sold slices
of pizza on waxed paper sheets to 500-1,000 buyers every day and there were no chairs or tables by
the pizza counter so most consumers stood in the shop while they ate. The court record showed that
so many slices were dropped daily that porters were continually sweeping it up. The appellate court
affirmed the trial court’s dismissal on the grounds that the defendants lacked actual or constructive
knowledge of the dangerous condition. The Supreme Court of Colorado reversed, reasoning that
“when the operating methods of a proprietor are such that dangerous conditions are continuous or
easily foreseeable, the logical basis for the notice requirement dissolves. Then, actual or constructive
notice of the spe cific condition need not be proved.” Although the Colorado state legislature enacted
legislation to preempt common law duties of landowners, the case continues to be cited with approval
for this doctrine. The dangerous mode of operation doctrine is some times criticized for being a form
of strict liability; can you see why?
The ne xt hypothetical applies the doctrine outside the context of food service to provide students
with practice synthesizing the rules for duty and breach and applying them to new facts.

Expand On Your Understanding – Slip-and-Fall Synthesis Exercise

320 | Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script)

Irina Shea was injured when she slipped and fell on ice near the exit of the Lett’s Downtown Car Wash in
Coeur d’Alene, Idaho. She fell when she exited her vehicle to adjust her mirrors which had been moved
during the car wash. Shea alleged that Lett’s owner, Kevic Corporation, was negligent in allowing ice to
build up near the car wash exit or in failing to warn of the danger of ice buildup. Kevic did not use any
warning signs, barriers, sanding or melting devices to warn or protect business patrons from the
hazardous conditions.
Shea testified in her deposition:
Q. And when you were walking—when you got out of your car, when you first put your feet on the
ground as you got out of the driver’s seat, do you recall whether the ground was wet?
A. It was not wet.
Q. Was it dry?
A. It was dry. Everything was just amazingly dry just like right now.
Q. Okay, and when you walked around by the headlight—
A. Yeah. When I was just making around first move, and apparently there was water trickling down from
underneath my car—from my car wash.
Q. Was it water or was it ice or what was it?
A. I don’t know because when—I fell right away, and apparently it was slippery, so it was maybe water
and ice all together.
Shea also testified that, as she was “getting out of the car and putting the tip money and as [she] started
to walk around,” she did not see any snow or ice on the ground. Shea explained, “There was just nice
weather, and everything was so dry. Nothing would suggest that it could be that.” Shea stated that she
did not see what she slipped on. She also stated that she did not notice any ice around her car before or
after she fell. After her fall, she explained, “It was so dry and nice.”
Lett’s manager is John Lett. In Lett’s deposition, he testified that every car that comes out of the car
wash “is dripping a little water” and he agreed that “when it’s cold … the water that vehicles … track from
the car wash … freezes.” Lett also testified that “[t]he employees are instructed to spread de-icer on the
icy areas as needed.” Lett discussed his actions and observations immediately following Shea’s accident.
Lett was working at the car wash the day of the accident, and he explained that an individual notified
him that someone had fallen and broken their wrist in the car wash parking lot. Lett went over to the car
wash exit and assisted the injured person, Shea, in getting out of the vehicle and obtaining medical
treatment. During this discussion of the events following Shea’s accident, Lett was asked, “And at the exit
of the car wash that day what were the conditions like?” He responded, “It was cold and icy.”
The temperature on the day of her alleged accident ranged from 28.9 degrees Fahrenheit to 38.9 degrees
Fahrenheit.
Shea sought over $30,000 in damages. Kevic concedes that Shea had the status of an invitee on the car
wash premises and Idaho follows the status-based rule for duties of possessors of land.
First: Practice stating the rule for duty under these circumstances.

Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script) | 321

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=58#h5p-79

Second: Practice breach analysis using circumstantial evidence.

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=58#h5p-80

Third: Skipping causation, which you have not yet learned, what conclusion would you draw
regarding Kevic’s liability?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=58#h5p-81

322 | Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script)

18. Negligence Per Se and Res Ipsa Loquitur
Statutory Violations as Negligence Per Se Restatement (3d) on Torts § 14 (2010)
An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against
the type of accident the actor’s conduct causes, and if the accident victim is within the class of
persons the statute is designed to protect.

Definition. Negligence pe r se is a doctrine with an evidentiary and a substantive effect that pertains
to one party’s use of the other party’s alleged violation of a statute to prove the defendant’s breach
of their duty of care. The rationale be hind the doctrine is that in some cases the legislature may
be de emed to have spe cified the appropriate standard of care and this may be “borrowed” for the
factfinders assessing the standard of care in a given case. Negligence per se applies to statutes but it
is usually also extended to municipal ordinances and administrative regulations, so the te rm “the law”
in part (2) of the formulation below should be construed broadly.
Because negligence pe r se could be considered as removing the question of breach from the jury’s
determination—substituting the legislature’s judgment for the jury’s, effectively—the doctrine requires
careful determinations of whether it will apply at all and if it does apply, what effect it will have on the
jury’s decision making.
Before the doctrine can be applie d (usually by the jury), the judge de termines the applicability of the
alleged violation, with a two-pronged inquiry. First, the violation must be proven by the plaintiff.
This is not necessarily the difficult part of the test: there may be visual e vidence available from a
speed camera or closed-circuit video; documentary evidence that someone furnishe d a minor with
liquor; or other modes of easily proving the statute’s violation, in addition to more e xpensive me ans
of proof including calling eyewitnesses. Still, the plaintiff cannot take this step for granted. Second,
the statute’s applicability for purposes of determining breach requires a four-part test. Only if all four
requirements ((2)a-d, below) are me t will negligence pe r se apply. Concretely, then, this means that
negligence per se may be applied:
(1) when a civil statute or ordinance is violated, and
(2) when the law that has been violated is designed to
(a) protect a class of persons which includes the person whose interest is invaded,
(b) protect the particular interest which is invaded,
(c) protect against the kind of harm which resulted, and
(d) protect that interest against the particular hazard from which the harm results.

Negligence Per Se and Res Ipsa Loquitur | 323

Exam tip: When facing a negligence per se scenario, be sure to methodically check off each of these
requirements! On a test, it may be just a few points lost for failure to do so. In court, the entire case
might live or die based on one of these elements.

McCarthy v. Weathervane Seafoods, U.S. District Court, D. New
Hampshire (2011)
(2011 WL 2174036)
*1 Kevin McCarthy brings claims of negligence and negligence pe r se against Weathervane Se afoods,
arising from injuries he sustained when he fell from a ladder while attempting to climb to the roof of a
Weathervane restaurant to repair a leak. Weathervane moves for summary judgment, contending that
the negligence claim fails be cause Weathervane owed no duty to McCarthy and the negligence per se
claim fails due to a lack of a statutory basis for the claim. McCarthy objects to the motion.
Weathervane Se afoods operates several restaurants in New Hampshire, including a restaurant located
at 174 Daniel Webster Highway in Nashua. During the e vents at issue in this case, McCarthy was selfemployed as a heating, ventilation, air conditioning, and refrigeration technician doing business as
1

Maxair. McCarthy was approved to provide service to the HVAC units at Weathervane restaurants,
including the Nashua restaurant, and had provided service on se veral occasions before the accident
that is the basis for this case.
On June 13, 2010, Jennifer Burgess, Assistant Manager at the Nashua Weathervane restaurant, asked
McCarthy to inspect and repair a leak in the roof of the restaurant. McCarthy inspected the le ak
from the kitchen area and then decided he would have to go up on the roof. McCarthy had been told
previously that there was a ladder chained to a pipe be hind the restaurant, which was used to access
the roof. McCarthy found the ladder, unchained it, and extended it up the side of the restaurant.
Burgess watched McCarthy set and climb the ladder. As McCarthy got near the top of the ladder, the
bottom slipped out, and he fell. McCarthy was badly injured in the fall. [***]
Weathervane

move
s for summary judgment on the

grounds that McCarthy cannot prove

his

negligence claim be cause Weathervane did not owe him a duty to protect against an open and obvious
danger and because Weathervane did not know nor should it have known of the slippery condition
where the ladde r was located. Weathervane also contends that McCarthy failed to state a negligence
per se claim. McCarthy objects, arguing that Weathervane breached its duty of reasonable care and

1. Heating, ventilation, and air conditioning is commonly abbreviated as “HVAC.”
324 | Negligence Per Se and Res Ipsa Loquitur

duty to warn and that his negligence pe r se claim is base d, properly, on Occupational Safety and
Health Administration (“OSHA”) regulations and New Hampshire regulations.
A. Negligence
*2 “To recover for negligence, a plaintiff must demonstrate that the defendant had a duty, that he
breached that duty, and that the breach proximately caused injury to the plaintiff.” [c] “Whether a
duty exists in a particular case is a question of law.” [c] [***] In his negligence count, McCarthy
alleges that Weathervane “faile d to provide a safe and se cure restaurant, ladder, rear exterior of the
restaurant or roof of the restaurant.” More spe cifically, McCarthy alleges that Weathervane “allowed a
hazardous condition to exist in the area where the ladde r had be en placed causing the ladder to slide
out from under Mr. McCarthy.” Weathervane challenge s the claim to the e xtent that McCarthy alleges
negligence be cause the ladde r with which he was provided was too short. In response, McCarthy
defends his negligence claim on the ground that Weathervane was negligent because the area where
the ladder was placed was slippery due to grease build-up.
1. Ladder
McCarthy alleges, in part, that Weathervane faile d to provide a safe and se cure ladder because the
ladder was too short to provide safe access to the roof. Weathervane contends, in support of summary
judgment, that even if the ladder it provided was too short, that defect was open and obvious. A
landowner does not have a duty to warn or instruct of a dangerous condition on the premises if it is
open and obvious. [c]
In objecting to summary judgment, McCarthy does not respond to Weathervane’s argument that
the alleged defect in the ladder was open and obvious. Instead, McCarthy focuses on the slippery
condition of the area where the ladde r was located. Because McCarthy does not pursue a claim that
Weathervane was negligent for providing a ladder that was too short, Weathervane is entitled to
summary judgment on that part of the negligence claim.
2. Condition of the Back Dock Area
“A premises owner owes a duty to entrants to use ordinary care to keep the premises in a reasonably
safe condition, to warn entrants of dangerous conditions and to take reasonable precautions to
protect them against foreseeable dangers arising out of the arrangements or use of the premises.” [c]
“[A] premises owner is subject to liability for harm caused to entrants on the premises if the harm
results either from: (1) the owner’s failure to carry out his activities with reasonable care; or (2) the
owner’s failure to remedy or give warning of a dangerous condition of which he knows or in the
exercise of reasonable care should know.” [c]
*3 [***] [Employees testified that] during the frying operations at the restaurant, the cooks skim
debris out of the frying oil and put it into an empty cardboard box. When necessary, one of the
cooks takes the box out to the dumpster behind the restaurant. The grease in the boxes drips onto
the pavement behind the restaurant, known as the back dock area, on the way to the dumpster. The
restaurant managers discussed the problem of grease buildup in the back dock area, and the grease
problem had to be addressed daily. [***] [C]ompany policy required the back dock area to be kept
Negligence Per Se and Res Ipsa Loquitur | 325

clean from grease and oil and not to be slippe ry. [***] [G]rease from the fryers was permanently on
the pavement in the back dock area. [***] [A]nother employee testified that they had used a power
washer with degreaser to clean the back dock area until the power washer broke, two months before
McCarthy’s accident. Weathervane did not replace the power washer, so the employees used a less
powerful hose without degreaser to try to clean the area.
The Weathervane regional manager testified that he che cked the back dock area at the Nashua
restaurant regularly. He said that he was checking for cleanliness, trash, and to be sure that it was
grease-free. He stated that grease in the back dock area was a safety concern. The regional manager
testified that when grease

built up in the

area, the employee
s were

suppose d to clean it or, if

necessary, hire some one who could clean it. He also testified that he had reviewed comments in forms
from the Nashua Weathervane about grease buildup in the back dock area.
After the fall, McCarthy was treated by EMTs from the Rockingham Regional Ambulance service. One
EMT who was kneeling next to McCarthy to provide treatment noticed when he stood up that the
knees of his pants and tips of his shoes were coated with a significant amount of grease. He said that
the grease smelled like fish and required several washings to remove.
McCarthy’s evidence of grease on the pavement in the back dock area where he attempted to use the
ladder to access the roof demonstrates at least a disputed issue of fact as to whether Weathervane
knew or should have known that the grease that accumulated there was a safety issue. Although
Weathervane states that McCarthy inspected the area where he put the ladde r, the e vidence cited
in support of that statement was not provided in the record. In contrast, McCarthy provided his
interrogatory answer in which he stated that after falling he noticed the pavement was covered with
grease and that he could not have se en the grease before climbing the ladde r be cause it was lightly
raining which caused all of the pavement to appear to be wet.
*4 Therefore, Weathervane has not shown that it is entitled to summary judgment on McCarthy’s
negligence claim based on the slippery condition of the back dock area.
B. Negligence Per Se
In Count II of his complaint, McCarthy alleges negligence per se, stating that Weathervane
responsible

for operating the

restaurant in compliance

with Federal and State

“is

labor laws and

regulations” and “[i]n particular, Weathervane Se afoods is responsible for complying with OSHA
regulations and New Hampshire state laws pertaining to ladder safety.” McCarthy further alleges that
“the Weathervane Se afoods failed to comply with OSHA and New Hampshire state laws pertaining to
ladder safety. See e.g. RSA 277:2.” McCarthy continues by alleging that Weathervane allowed “an unsafe
and non OSHA or New Hampshire compliant ladder to be used to access the roof of the restaurant.”
Under the negligence

pe r se

doctrine, the standard of conduct is provided by statute. [c] The

negligence pe r se doctrine applie s if “the injured person is a member of the class intended by the
legislature to be protected, and … [if] the harm is of the kind which the statute was intended to
prevent.” Id. (internal quotation marks omitted). In addition, “[a]n implicit element of this test is
whether the type of duty to which the statute spe aks is similar to the type of duty on which the cause
of action is based.” Id. (internal quotation marks omitted).
326 | Negligence Per Se and Res Ipsa Loquitur

Weathervane contends that McCarthy’s negligence pe r se claim fails be cause the New Hampshire
statute cited, Revised Statutes Annotated (“RSA”) § 277:2, is inapposite to the circumstances in this
case, because OSHA regulations cannot provide the basis for a negligence pe r se claim, and be cause
McCarthy cannot add new grounds for the claim in response to a motion for summary judgment. In
response, McCarthy contends that he cited RSA 277:2 only as an example of a statute pertaining to the
ladder provided by Weathervane, cites New Hampshire Labor regulations as the basis for his claim,
and argues that OSHA regulations can support a negligence per se claim. [***]
1. RSA 277:2.
RSA chapter 277 governs employment by “the state or any of its political subdivisions.” RSA 277:1–b,
II. RSA 277:2, which requires, among other things, that the state or a political subdivision acting as
an employer provide proper protection to employees who are using a ladder to make repairs, does
not apply to Weathervane, which is not the state or one of its political subdivisions. Therefore, to the
extent McCarthy’s negligence pe r se claim is base d on RSA 277:2, Weathervane is entitled to summary
judgment.
2. State Regulations
*5 McCarthy argues in his objection to summary judgment that certain New Hampshire

labor

regulations pertaining to ladders are the basis for his negligence pe r se claim. McCarthy also argues
that Weathervane was negligent per se because the buildup of grease in the back loading area violated
certain sections of the International Building Code and International Property Maintenance Code,
incorporated into New Hampshire law by RSA 155–A:2. Weathervane responds that McCarthy cannot
identify new grounds for his claim for purposes of avoiding summary judgment.
[***] In this case, McCarthy alleges that Weathervane’s failure to adhere to New Hampshire’s laws
pertaining to ladder safety constituted negligence per se. In his objection, McCarthy identifies New
Hampshire Code of Administrative Rules, Labor 1403.30, and contends that the ladder provided by
Weathervane was too short, in violation of the regulation. McCarthy also represents that he identified
Labor 1403.30 as a basis for his negligence pe r se claim in discovery provided to Weathervane. Given
McCarthy’s pleadings and the disclosure of Labor 1403.30, specifically, in discovery, that part of
McCarthy’s negligence per se claim is not a new claim for purposes of summary judgment.
McCarthy also asserts in his objection that his negligence pe r se claim is base d on the slippery
condition of the back area where the ladde r was located and contends that the slippery condition
violated Section 116 of the International Building Code and Se ction 302.1 of the International Property
Maintenance Code. McCarthy did not allege the slippe ry condition in his complaint as a basis for his
negligence per se claim and did not reference the International Building Code or the International
Property Maintenance Code. [***] *6 Because McCarthy did not allege the factual basis for negligence
per se based on slippery conditions or either Code that he now cites, those grounds for his negligence
per se claim were not part of his complaint. McCarthy cannot raise a ne w claim in his objection to
summary judgment.
3. OSHA Violations

Negligence Per Se and Res Ipsa Loquitur | 327

[***] The New Hampshire Supreme Court has not decided whether a violation of an OSHA regulation
could support a state law claim for negligence per se. [***] [However T]he First Circuit has held that a
state law negligence pe r se claim cannot be base d on a violation of an OSHA regulation. Weathervane
is entitled to summary judgment on McCarthy’s negligence pe r se claim to the e xtent it is based on an
OSHA violation.
Weathervane also argues that even if an OSHA violation could support a negligence pe r se claim,
OSHA regulations apply to employers and therefore do not apply in the circumstances of this case
where McCarthy was an independent contractor. [c] That issue ne ed not be resolved in light of the
First Circuit’s holding in Elliot that OSHA violations cannot be the basis for state law negligence per se
claims.
*7 For the foregoing reasons, the defendant’s motion for summary judgment (document no. 10) is
granted to the e xtent that the plaintiff’s negligence claim is base d on a theory that the ladder provided
was too short and to the e xtent the negligence pe r se claim is base d on RSA 277:2, violation of
the International Building Code or the International Property Maintenance Code due to a slippe ry
condition, and OSHA regulations. The motion is otherwise denied.
The plaintiff’s remaining claims are:
(1) negligence based on the alleged slippery condition of the area where the ladder was located, and
(2) negligence per se based on an alleged violation of New Hampshire Administrative Code, Labor
1403.30.
SO ORDERED.
Note 1. McCarthy’s claim survives based only on the basis of the grease buildup e ven though the ladder
was unlawfully short. Does it seem overly technical to insist on using negligence pe r se in this fashion,
or does it seem consistent with the various hurdles and limitations created to guide its proper use?
Note 2. A few months later, a subsequent ruling for the defendant granted summary judgment on the
negligence pe r se claim relating to Weathervane’s alleged violation of New Hampshire Administrative
Code Labor 1403.30. It ruled that this statute did not apply to independent contractors such as
McCarthy providing services to private entities such as Weathervane, thus leaving only the common
law premises liability negligence claim against Weathervane for its slippery conditions. McCarthy v.
Weathervane Seafoods, No. 10-CV-395-JD, 2011 WL 4007406, at *1 (D.N.H. Sept. 8, 2011)
It matters (descriptively) what statute or regulation was violated, as McCarthy makes clear. If the work
of determining breach of duty is to be taken from the jury and prescribed by statute, there ought to be
normative justifications for that divestiture of jury authority, such as careful alignment with legislative
purpose and scope. But should it? Does parsing the statutes in this way make de terminations of
negligence overly formalist and risk diminishing the substantive justice of the outcome? Put another
way, should the statute that sets standards for government buildings not apply in this case involving
a privately owned building simply because statute’s applicability is limited to government-owned
buildings? And why should OSHA standards be

328 | Negligence Per Se and Res Ipsa Loquitur

rendered irrelevant because

a case

involves an

independent contractor rather than an employee — should the le vel or kind of conduct required in a
negligence action vary depending on whether the injured person is an employee or a contractor?”
Which of tort law’s purposes are served by adhering to the technicalities associated with these rules?
What incentives do such rules create?
Effect. Remember when analyzing negligence pe r se to pay close attention to the applicability and
effect of any statutory violation but always remember to check whether the plaintiff can succeed by
reverting to common law negligence in the alte rnative. Depending on the jurisdiction (and possibly the
activity at issue), the effect of using a statute in this way can vary. In some instances, a plaintiff may use
the proven violation of a statute simply as admissible e vidence for the jury to consider as it evaluates
whether the defendant breached their duty of care. This is known as an “evidence of negligence”
regime. In other cases, a proven statutory violation can be treated as conclusive of negligence: if the
plaintiff can prove that the defendant violated a statute, that evidence will also suffice to satisfy the
plaintiff’s burden on the element of breach, and the plaintiff will then need to be able to prove that
that statutory violation caused the harm of which plaintiff complains. Can you see the difference in
these two possible effects?

Civic v. Signature Collision Centers, LLC, D.C. Court of Appeals (2019)
(221 A.3d 528)
Appellant Melanne Civic sued appellees Signature Collision Centers, LLC and H.P. West End, LLC,
alleging that their negligence was responsible for injuries she suffered in a fall. A jury found that
Signature and H.P. West End had been negligent, but that Ms. Civic’s contributory negligence barred
her from recovering. Ms. Civic argues on appeal primarily that the trial court erroneously declined to
instruct the jury on the issue of per se negligence. We affirm.
I.
Except as indicated, the following facts appear to be undispute d. In February 2013, Ms. Civic fell on
a “handicap ramp” while walking out of an automobile-repair shop operated by Signature and owned
by H.P. West End. Ms. Civic testified that she fell because of an unmarked vertical and horizontal gap
between a landing and the ramp. Ms. Civic introduced expert testimony that the vertical component
of the gap was two to three inches and that the gap was inconsistent with the requirements of the
District of Columbia Building Code. According to Ms. Civic’s expert, the gap was unsafe and contrary
to applicable standards of care. The defense elicited testimony that Ms. Civic had previously gone in
and out of the repair shop, that she did not recall whether she was using the handrail when she fell,
and that she was carrying a boot and a cell phone when she fell.
Ms. Civic asked the trial court to instruct the jury that if the jury found that Signature and H.P. West
End violated D.C. Building Code § 1003.6, then the jury was required to find that Signature and H.P.
West End were negligent. At the time of the incident at issue, § 1003.6 required among other things

Negligence Per Se and Res Ipsa Loquitur | 329

that a path of egress consist of a “continuous unobstructed path of vertical and horizontal egress
travel.”
The trial court declined to give the requested instruction. The trial court did, however, give an
instruction that if the jury found that Signature and H.P. West End violated § 1003.6, the jury could
consider that violation as evidence of negligence. Relatedly, the trial court instructed the jury, over
Ms. Civic’s objection, that if the jury found that Ms. Civic’s negligence was a proximate cause of her
injuries, the jury could not find Signature and H.P. West End liable.
II.
Ms. Civic’s principal challenge is to the jury instructions. Whether the jury *530 instructions were
accurate is a question of law that we decide de novo. [c] We find no error.
“In the District of Columbia, a plaintiff in a negligence action generally cannot recover when [the
plaintiff] is found contributorily negligent.” [c] That bar on recovery does not apply, however, if the
plaintiff can show that the defendant’s conduct violated a statute or regulation intended to give
“classes of persons likely to be careless … greater protection than that which might be afforded at
common law.” [c] We have often referred to the latte r principle as the doctrine of “negligence per se.”
[c] A plaintiff may rely on that doctrine only if the plaintiff “is a member of the class to be protected
by the statute.” [c]
To the e xtent that § 1003.6 is viewed as merely part of the general Building Code, we do not se e any
basis upon which to conclude that § 1003.6 was intended to provide a class of unusually vulnerable
persons with heightened protections. [***] The trial court thus correctly declined to instruct the jury
on per se negligence in the circumstances of this case.
We do wish to clarify two points. First, there is some indication that § 1003.6 may relate to fire-code
provisions or might be understood as directed at providing protections for persons with disabilities.
The current case does not involve a plaintiff with a disability or who was fleeing from or responding
to a fire or other emergency, and we e xpress no view about the applicability of the doctrine of per se
negligence in such cases. Second, the broad language in [earlier] cases [c] should not be understood
to categorically foreclose the possibility that a provision in a building or housing code could provide
a predicate for an instruction as to per se negligence. To the contrary, this court has held that, in at
least some circumstances, provisions of the Housing Code would provide a predicate for application
of the principle of per se negligence. See Scoggins v. Jude, 419 A.2d 999, 1005-06 (D.C. 1980) (policy
underlying Housing Code generally precludes landlord from relying on contributory negligence base d
on theory that tenants or guests should not have remained in premises or should have repaired
premises themselves).
Ms. Civic’s arguments do not persuade us that the trial court in this case was required to give an
instruction on per se negligence. First, Ms. Civic relies on the following language from our decision in
*531 Ceco Corp. v. Coleman, 441 A.2d 940, 946 (D.C. 1982) (internal quotation marks omitted):
The general rule in this jurisdiction is that “where a particular statutory or regulatory standard
is enacted to protect persons in the plaintiff’s position or to prevent the type of accident that
330 | Negligence Per Se and Res Ipsa Loquitur

occurred, and the plaintiff can establish [the plaintiff’s] relationship to the statute, unexplained
violation of that standard renders the defendant negligent as a matter of law.
Considered in isolation, that language
applicable

would seem to make

to all statutes or regulations that have

the

doctrine

of per se negligence

a public-safety purpose. As we

have

already

explained, however, supra at 530, the analysis in and holdings of our prior and subsequent cases make
clear that the doctrine is not so sweeping, at least in the context of contributory negligence. Rather,
we have found statutes or regulations to be a basis for lifting the contributory-negligence bar when
those statutes or regulations were directed at “protect[ing] persons from their own negligence.” [c]
Second, Ms. Civic relies heavily on our decision in Scoggins, 419 A.2d 999. Specifically, Ms. Civic reads
that decision as standing for the proposition that violations of the Housing Code are generally per se
negligent, thus lifting the contributory-negligence bar, unless the plaintiff engaged in “unreasonable
conduct which may have added to a dangerous condition.” Id. at 1006. [***]
[W]e do not share Ms. Civic’s interpretation of Scoggins. Scoggins held that, in general, “the Housing
Regulations impose only a duty of reasonable care upon owners of rental property.” 419 A.2d at 1005.
We thus further held that contributory negligence is generally a defense to a claim of negligence
resting on a violation of the Housing Regulations. Id. (“[I]f there is sufficient evidence tending to
show a tenant (or a tenant’s guest), by act or omission, unreasonably increased the e xposure he or
she otherwise would have had to danger created by a landlord’s failure to comply with the Housing
Regulations, the jury should be allowed to consider whether there was contributory negligence. No
public policy would be frustrated.”) (citation omitted).
We identified an exception to the latter principle, however: landlords generally are not permitted
to base a claim of contributory negligence on the conduct of a tenant or guest in simply using the
premises or failing to themselves repair the premises, because such defense would “undermine the
public policy implicit in the Housing Regulations.” Id. at 1004-05. Applying these principles, we held
that the trial court properly declined to instruct the jury on the the ory that the tenant and guest in
the case were contributorily negligent by simply remaining in and moving about the apartment even
though there was a crack in the apartment’s ceiling. Id. at 1005-06. Finally, we held that the jury ought
to have be en allowed to consider whether the tenant was contributorily negligent by hanging plants in
the ceiling (or failing to remove the plants), which may have caused the apartment’s ceiling to collapse.
Id. at 1006. On the last point, we explained that
In contrast with the policy permitting a tenant to remain in a substandard living
room and to take reasonable steps to protect his or her property–for which there
is no reasonable alternative–there is no public policy that would suggest *532
barring the landlord from alleging a tenant’s contributory negligence through
unreasonable conduct which may have added to a dangerous condition. Id.
In sum, Scoggins is entirely consistent with our conclusion in this case that violations of the Building
Code generally do not amount to per se negligence barring the de fense of contributory negligence.
[***]

Negligence Per Se and Res Ipsa Loquitur | 331

Finally, Ms. Civic relies on a second provision – American National Standards Institute (ANSI) A117.1
–that apparently sets additional requirements for safe walkways. According to Ms. Civic, that provision
was adopted as part of the District’s Building Code, and the trial court erroneously barred Ms. Civic’s
expert from testifying to the jury about the provision. To the e xtent that Ms. Civic’s argument is
directed at the ide a that the jury was erroneously deprived of information that would have be en
relevant to whether Signature and H.P. West End were negligent, any error was harmless, because
the jury in any event found that Signature and H.P. West End were negligent. See, e.g., Knight v.
Georgetown Univ., 725 A.2d 472, 479 n.7 (D.C. 1999) (error harmless where court could say with fair
assurance that error did not substantially sway jury’s verdict). It is not clear whether Ms. Civic is also
relying on ANSI A117.1 as a basis upon which the trial court ought to have instructed the jury about per
se negligence. If so, ANSI A117.1 would not have provided such a basis in the circumstances of this case,
for the reasons stated above with respect to § 1003.6 of the Building Code.
For the foregoing reasons, the judgment of the Superior Court is affirmed.
Note 1. What is the difference be tween what Civic sought in a jury instruction and what the trial court
instructed? Why does it matter?
Note 2. Statutes and regulations are increasingly incorporating by reference the standards produced
by standard-setting organizations, such as the American National Standards Institute
mentioned in Civic. Some

industry standards are

considered as custom evidence

(“ANSI”)

e ven if not

incorporated by reference (as seen in Trimarco v. Klein). These standards raise difficult questions for
courts. For instance, should standards not incorporated be given more weight than mere custom,
given the rigor of the standard-setting process? Should standards incorporated by reference be
treated like statutes, even though the de tails are not worked through via a legislative or regulatory
process? Courts have treated some privately generated standards with skepticism. See Bernard Bell,
Engineering Rules: Chronicling the Development of A Third Way, YALE NOTICE & COMMENT (Oct. 2,
2019), at footnote 12 and accompanying text, reviewing Joanne Yates and Craig N. Murphy, Engineering
Rules: Global Standard Setting Since 1880 (John Hopkins University Press 2019) (quoting Rossell v.
Volkswagen, 147 Ariz. 160, 166, 709 P.2d 517, 524 (1985), cert. denied, Volkswagen of America v. Rossell,
476 U.S. 1108 (1986))
Recent scholarship provides an intriguing account of the rise of standardization and its importance
in an increasingly global market, especially given the safety, interoperability and performance issues
that have driven its rise.
“[T]the

standardization movement was largely initiated by engineers who considered

performing public service

an avenue for enhancing engineering’s status as a profession.

Indeed, one of the first major debates among standard-setters involved allowing business
entities to formally participate in their standard–setting processes. Pragmatism was central
to the de cision; without business participation any standards produced were much less likely
to attain widespread adoption. At various points over the course

of time

de votee
s of

standardization saw their efforts as a means of enhancing the competitiveness of their
countries’ industry vis-à-vis those of other countries, improving the conditions of laborers,
enhancing economic growth, contributing to their nation’s war efforts when conflicts raged
332 | Negligence Per Se and Res Ipsa Loquitur

and encouraging peace and avoidance of war when such conflicts ended, enhancing the
internationalist post-World-War-II vision, and facilitating the de velopment of the Internet as a
radical change in the way people interacted.” Bell, supra at footnote 6 and accompanying text.
Given growing concerns over labor and supply chains as well as the environmental costs of
manufacturing, the legal, regulatory and ethical questions involved in standardization will likely
only continue to be come more pressing. Despite the concerns that self-regulation can raise—the
fox guarding the henhouse, and so on—there

is value

in private

standard-setting organizations.

For one thing, the y are capable of being “far more nimble in adapting to te chnological change”
and thus “regularly revise their standards in light of technological advances.” Id. at footnote 15 and
accompanying text.
Note 3. In your study of defenses to negligence claims in Module 4, you will learn about defenses based
on the plaintiff’s conduct. A handful of jurisdictions, including D.C., follow “contributory negligence,”
which bars plaintiffs from recovery when they are

at fault. Various doctrines limit what might

otherwise a fairly harsh rule for plaintiffs, including negligence pe r se in some instances. Contributory
negligence imposes deliberate constraints on plaintiffs while negligence pe r se attempts to protect
and facilitate recovery for plaintiffs under particular circumstances, which is why it can sometimes
be use d to mitigate the othe rwise harsh result of contributory negligence. In attempting to balance
these competing policy aims, does the court get it right in Civic, in your view?
Note 4. The Civic Court distinguishes between statutes like the general building code (which protect
the general public) and statutes aimed at providing “a class of unusually vulnerable persons with
heightened protections.” When statutes exist to protect the vulnerable, such as small children or
workers whose safety depends on others, their violation in many jurisdictions will be treated as
dispositive (or “per se negligence”). For instance, in Koenig v. Patrick Construction Corp., the plaintiff
was a window cleaner hired by the defendant as an independent contractor. The defendant’s
employees had instructed the plaintiff to use a 20-foot wooden ladder to reach the upper windows.
The ladder lacked “safety shoes” to prevent slipping when the ladder was in use as well as the
necessary notches to which such safety shoes attached, which were violations of the local labor
law. The ladder slipped, causing the plaintiff to fall and sustain serious injuries. A jury found for the
defendant after being instructed that they must determine whether the plaintiff had properly used
the ladder and evaluate the plaintiff’s fault, if any. On appeal, the Court of Appeal reversed:
“[A] plaintiff’s carelessness is no bar to his recovery under a statute which imposes liability
‘regardless of negligence’. [c] Obviously, not every statute

which commands or prohibits

particular conduct is within this principle. Only when the statute is designed to protect
a definite

class of persons from a hazard of definable

orbit, which they themselves are

incapable of avoiding, is it deemed to create a statutory cause of action and to impose a
liability unrelated to questions of negligence. This rule is based upon the vie w that, not
being dependent upon proof of specific acts of negligence on defendant’s part, the cause
of action may not be defeated by proof of plaintiff’s want of care. Thus, it has been said, ‘If
the defendant’s negligence consists in the violation of a statute enacted to protect a class of
persons from their inability to exercise self-protective care, a member of such class is not
Negligence Per Se and Res Ipsa Loquitur | 333

barred by his contributory negligence from recovery for bodily harm caused by the violation
of such statute’. Restatement, Torts, s 483.
Since the plaintiff’s cause of action does not rest on negligence, contributory negligence does
not constitute a defense. Indeed, the very purpose of the statute was to protect plaintiff’s
intestate and others in like position from the consequences of their own negligence. It would
be strange, therefore, if the same negligence could defeat the operation of the statute. [c]
The safe-ladder provision of section 240 comes squarely within this doctrine. By its force,
certain safeguards have be en legislatively commanded for the safety of those engaging in the
work described. Instead of simply defining the general standard of care required and then
providing that violation of that standard evidences negligence, the legislature impose d upon
employers or those directing the particular work to be done, a flat and unvarying duty.
This the language of the se ction makes crystal clear: the employer or one directing the work
‘shall furnish’ or cause to be furnishe d equipment or devices ‘which shall be so constructed,
placed and operated as to give

proper protection’ to the

one

doing the

work. (Emphasis

supplied.) For breach of that duty, thus absolutely imposed, the wrongdoer is rendered liable
without regard to his care or lack of it.
And, what the statute de clares, its reason confirms. Workmen such as the present plaintiff, who
ply their livelihoods on ladders and scaffolds, are scarcely in a position to protect themselves
from accident. They usually have no choice but to work with the e quipment at hand, though
danger looms *319 large. The legislature

recognized this and to guard against the

known

hazards of the occupation required the employer to safeguard the workers from injury caused
by faulty or inadequate e quipment. If the employer could avoid this duty by pointing to the
concurrent negligence of the injured worker in using the equipment, the beneficial purpose of
the statute might well be frustrated and nullified. That possibility we long ago perceived and
provided for, declaring that ‘this statute is one for the protection of workmen from injury, and
undoubtedly is to be construed as liberally as may be for the accomplishment of the purpose
for which it was thus framed’. [c] Such an interpretation manifestly rules out contributory
negligence as a defense to an action predicated upon violation of the statute to the injury of
one in the protected class. [cc]
A different case would be before us if the injured person were a passerby or a workman struck
by a falling ladder; as to them persons outside the class for whose spe cial benefit the statute
was designed a violation might do no more than e vidence negligence. That, however, is not this
case. Here, to recapitulate, we have an action based upon a statute whose cardinal purpose was
to protect plaintiff and others in his calling, without reference to questions of negligence, from
the occurrence of just such an accident as befell him. In spite of this, the trial court left the jury
free to bring in a verdict against plaintiff if it found him guilty of contributory negligence. Such
instructions were in open conflict with the purpose and aim of the statute, and, since the y may
have improperly influenced the result, there must be a new trial.
Koenig v. Patrick Const. Corp., 298 N.Y. 313, 315–16, 317, 318-319 (1948)
334 | Negligence Per Se and Res Ipsa Loquitur

Washington’s Negligence Per Se Statutory Provisions
Read the statutory language below and see if you can parse the e videntiary differences and categorical
distinctions the legislature has created.
RCWA 5.40.050 5.40.050. Breach of duty—Evidence of negligence—per se
(Effective: July 1, 2010)
A breach of a duty imposed by statute, ordinance, or administrative rule shall not be considered
negligence per se, but may be considered by the trier of fact as evidence of negligence; however, any
breach of duty as provided by statute, ordinance, or administrative rule relating to:
(1) Electrical fire safety,
(2) the use of smoke alarms,
(3) sterilization of needles and instruments used by persons engaged in the practice of body
art, body piercing, tattooing, or electrology, or other precaution against the spread of disease,
as required under RCW 70.54.350, or
(4) driving while unde r the influence of intoxicating liquor or any drug, shall be considered
negligence per se.
Note 1. Negligence Per Se: Different Evidentiary Impact. The

Washington state legislature

has

distinguished among the types of negligence pe r se available base d on certain activities or items, all
related to safety or public health. What is the general effect of negligence pe r se in Washington state?
What is the effect of negligence per se with respect to the areas specially enumerated above?

Chester v. Deep Roots Alderwood, LLC, Court of Appeals of Washington,
Division 1 (2016)
(193 Wash. App. 147)
*150 Anna Chester suffered an adverse reaction after being tattooed with ink that appears to have
been contaminated with bacteria when the tattoo artist received it from the distributor. Chester
brought negligence claims against the tattoo artist and the tattoo parlor, arguing that they had a duty
to use ste rile ink. The trial court dismissed her claims on summary judgment and Chester appeals. We
affirm, because neither the regulations governing the tattoo industry nor the common law imposes a
duty to use sterile ink.
Bonnie Gillson, a tattoo artist, applied a tattoo to Anna Chester at Deep Roots Alderwood, LLC, a shop
specializing in tattoos and body piercing. For the black portion of the tattoo, Gillson used One brand
tattoo ink. One was a popular ink that Gillson had used for about a year and a half without problem.
She ordered the ink from Kingpin Tattoo Supply, a distributor from whom she ordered many tattoo
supplies.

Negligence Per Se and Res Ipsa Loquitur | 335

A few weeks after applying Chester’s tattoo, Gillson learned that several of her clients were
experiencing adverse reactions to the black ink portions of their tattoos. An investigation by King
County Public Health traced the reactions to a particular bottle of One brand black tattoo ink.
The investigation indicated that the ink had likely been contaminated during manufacture. Gillson
contacted every client she tattooed during the period of time she use d the contaminated bottle of ink.
Most clients suffered only a minor skin irritation that did not require medical treatment.
Chester, however, suffered a serious reaction to the contaminated ink. She consulted a doctor who
diagnosed a bacterial infection at the tattoo site and prescribed a course of antibiotics. The infection
did not respond to the prescribed treatment. Chester’s kidney function declined rapidly. In the
opinion of Chester’s doctor, the bacterial infection aggravated an underlying chronic kidney disease.
Chester was eventually referred to an infectious disease *151 specialist, Dr. Warren L. Dinges. Dinges
successfully treated the infection. But before the infection was brought under control Chester’s
kidneys had failed, requiring her to begin dialysis.
2

Chester brought product liability and negligence claims against Gillson and De ep Roots. [***] Gillson
and Deep Roots moved for summary judgment. Chester conceded dismissal of her product liability
claims, but opposed the motion as to her negligence claims. The trial court found as a matter of law
that Chester’s evidence faile d to establish the essential elements of negligence and granted summary
judgment for Gillson and Deep Roots. Chester appeals.
[***] *152 Chester first argues that the respondents were negligent per se because the y violated
a statutory duty of care. Chester relies on RCW 5.40.050(3), under which the breach of tattooing
regulations related to the

use

of sterile needles is negligence per se. She asserts that WAC

246.145.050(1), which requires that tattoo artists use “sterile instruments and aseptic techniques at all
times during a procedure,” imposes a duty to use sterile ink. […]
The legislature authorized the se cretary of the Department of Health to regulate the tattoo industry
and instructed the se cretary to adopt rules “in accordance with nationally recognized professional
standards.” RCW 70.54.340. The legislature further directed the se cretary to “consider the standard
precautions for infection control, as recommended by the United States centers for disease control.”
RCW 70.54.340. In compliance with these directives, the secretary of health adopted chapter 246–145
WAC to regulate electrology, body art, body piercing, and tattooing.
WAC 246–145–050 details 24 “universal precautions” applicable to tattoo artists and body piercers.
Three subse ctions include sterilization requirements. Artists must use *153 “sterile instruments and
aseptic techniques at all times during a procedure.” WAC 246–145–050 (1). They must use

only

presterilized single -use disposable tattoo needles. WAC 246–145–050 (2). … The regulation includes
two provisions concerning tattoo ink. Tattoo artists must use single-use ink containers for each
client to prevent contaminating the unuse d portion of ink. WAC 246–145–050(15). Artists may not

2. Chester also brought product liability claims against Kingpin and one of Kingpin’s suppliers. These claims were not
dismissed on summary judgment and are not before this court.
336 | Negligence Per Se and Res Ipsa Loquitur

use

inks that are

banne d or restricted by the

3

FDA. WAC 246–145–050(18). The

ne xt regulation,

WAC 246–145–060, details the requirements for “[s]terile procedures in body art, body piercing and
tattooing.” The regulation … requires artists to reuse only instruments intended for multiple use
that have be en cleaned and sterilized between clients. WAC 246–145–060(1)(c). The regulation gives
specific requirements for sterilizing and storing reusable instruments. WAC 246–145–060(1)(c)–(g).
The regulation includes no requirements for ink.
There is no regulation that, by its plain language, creates a duty to use ste rile ink. The regulatory
sche me as a whole indicates that the se cretary carefully considered sterilization as it applies to the
tattoo industry. The regulations require that some items be obtained presterilized and that others
be sterilized on site, according to detailed procedures. The secretary also considered tattoo ink and
issued rules concerning what ink may be used and how ink must be dispensed.
*154 Considering the detail of the

regulatory scheme, the specific requirements concerning

sterilization, and the attention given to tattoo ink, it is not reasonable to conclude that the se cretary
intended to require the use of sterile ink but couched that duty within the requirement to use sterile
instruments and aseptic techniques. We conclude that the plain language of the regulation is not
ambiguous and the legislative intent is clear. There is not a regulatory requirement to use sterile ink.
Chester next argues that the definition section of RCW 70.54.330 is an independent basis for finding
the

respondents negligent per se. RCW 70.54.330(4) defines “tattooing” as an indelible

mark

“introduced by insertion of nontoxic dyes or pigments into or under the subcutaneous portion of
the skin.” Chester contends that this section creates a duty to use only nontoxic ink and that the
respondents breached this duty by using contaminated ink. The respondents argue that the se ction
does not apply to the negligence per se statute, RCW 5.40.050(3). We agree with the respondents.
RCW 5.40.050 establishes negligence pe r se for the breach of a duty created by statute or rule relating
to “(3) sterilization of needles and instruments used by persons engaged in the practice of body art,
body piercing, tattooing, or electrology, or other precaution against the spread of disease, as required
under RCW 70.54.350.” The referenced statute, RCW 70.54.350 states, “Any person who practices
electrology or tattooing shall comply with the rules adopted by the department of health under RCW
70.54.340.” The negligence pe r se statute thus applie s to the breach of any tattooing regulation having
to do with precautions against the spread of disease. The definition of tattooing in RCW 70.54.330(4)
is not such a regulation.
This reading is in harmony with other statutory and regulatory provisions defining tattooing. RCW
18.300.010, which became effective

at the

same

time

as the

tattoo regulations, explicitly states

that its definitions apply to *155 RCW 5.40.050, the negligence pe r se statute. The statute defines
“tattooing” as “to pierce or puncture the human skin with a needle or other instrument for the
purpose of implanting an indelible mark.” RCW 18.300.010(8). The regulations also use this definition.

3. The FDA does not require that tattoo inks be sterile. See Centers for Disease Control, Morbidity and Mortality Weekly
Report (MMWR), Tattoo–Associated Nontuberculous Mycobacterial Skin Infections—Multiple States, 2011–2012 (August 24,
2012) Vol. 61, No. 33, 653–656 at http://www.cdc.gov/mmwr/pdf/wk/mm6133.pdf
Negligence Per Se and Res Ipsa Loquitur | 337

WAC 246–145–010(25). Neither the statutory nor the

regulatory definition encompassed by the

negligence per se statute includes the word “nontoxic.”
[***] We conclude that Chester has not shown the e xistence of a statutory duty to use ste rile ink and
we reject her claim of negligence per se.
Chester argues in the alternative

that she established the elements of common law negligence.

Chester asserts that even if the respondents owed only a duty of reasonable care, they breached that
duty by not using sterile ink or confirming that the ink was not contaminated. Chester does not assert
that ste rile ink is the industry standard. But she argues that even if sterile ink is not routinely used, the
risks associated with using contaminated ink far outweigh the burden of using ste rile ink. She argues
that the respondents thus breached a duty of reasonable care by failing to ensure the ink the y used
was sterile.
Chester relies on Helling v. Carey, 83 Wash.2d 514 (1974), in which the Supreme Court *156 quoted
4

Judge Le arned Hand and followed his cost-benefit analysis. Id. at 519. In Helling, a 32–year–old
patient became partially blind due to unde tected glaucoma. Id. at 516. The defendant ophthalmologists
presented evidence that glaucoma is uncommon in young patients and the industry standard was to
administer routine glaucoma tests after the age of 40. Id. But the court held that, given the severity of
glaucoma and the availability of a simple and harmless test to detect the dise ase, the doctors breached
a duty by failing to administer the test. Id. at 519.
Chester’s argument falls short because she glosses over the burden of using sterile ink. In Helling,
it was undisputed that the ophthalmologists could easily administer a simple glaucoma test. Helling,
83 Wash.2d at 519. Chester asserts that using sterile ink is similarly easy as “Gillson can simply order
sterile rather than non-sterile ink….” She further argues that the respondents had not only a duty
to purchase ink advertised as sterile, but also a duty to ensure that ink was in fact sterile. However,
Chester has not shown that sterile ink was widely available at the time in que stion, that claims of
sterility were reliable, or that tattoo artists had the me ans to test ink for contamination and sterilize
it on site.
Chester presented evidence that Intenze brand tattoo ink was advertised as ste rile about the time
that Gillson purchased the One brand ink. She also produced the article Microbial status and Product
Labelling of 58 original tattoo inks (2011) as evidence of the association between tattoo ink and
bacterial infection. The

article

reports on a study of 58 inks for sale

in the

European market.

Concerning those inks claiming to be sterile, the authors found that none of the claims could be
verified and some were demonstrably false. The authors found that Intenze black ink, advertised as
sterile, contained a high level of bacterial contamination.
The record includes a further example of an unreliable claim of sterility. At some point prior to March
2012, *157 the One brand website claime d that its ink was sterile. An inspection determined that,

4. Editor’s note: This is a reference to Judge Learned Hand’s negligence calculus, B < PL, referred to at the start of Module.
338 | Negligence Per Se and Res Ipsa Loquitur

although the manufacturer was having the ink treated with gamma radiation, the dosage of radiation
was not sufficient to support the claim of sterility.
Chester has not shown that sterile ink was readily available or that claims of sterility were reliable. She
offered no evidence that tattoo artists have the me ans to test ink for contamination or sterilize ink
received from distributors. We conclude that Helling is distinguishable. Chester has not established
that the respondents’ duty of reasonable care required them to use sterile ink.
[***] Affirmed.
Note 1. Common-Law Negligence as Fall-Back If Negligence Per Se Fails. A common mistake is to
conclude that the plaintiff’s case will fail if the doctrine cannot be applie d. Recall that this doctrine
operates to ease the burden on the plaintiff, and to substitute, or supplement, the jury’s factfinding
with guidance from the legislature in areas existing laws prescribe the conduct that is reasonable
and lawful. Merely because a defendant has not been proven to violate a statute, or has violated a
statute whose violation fails the four-part applicability analysis does not foreclose the plaintiff’s ability
to attempt to prove common-law negligence by the defendant. In such cases, plaintiff will attempt
to prove up the de fendant’s breach as they ordinarily would (through relevant witness and expert
testimony, custom evidence where relevant and available, and any other evidence that shows that
defendant was careless in ways that caused the plaintiff’s injuries).
Note 2. What is the significance of the court’s treatment of Helling? Why didn’t Chester use custom
evidence to prove her case? Does this outcome seem normatively correct or not? Why?
Note 3. Negligence Per Se in Tension with the Reasonable Person Standard. In some respects, the
use of negligence pe r se to de termine negligence seizes the question from the jury. (Where the
doctrine is use d merely to provide e vidence of negligence, this is less the case; it merely operates
to assist the jury, rather than to usurp its decisional authority.) Courts and commentators have
sometimes wondered whether the doctrine should yield to common law standards and grant greater
deference to the factfinder in light of tort law’s preference for fact-sensitive adjudication in most
domains. One area in which courts have acted to limit the scope of negligence pe r se is in its impact
on the reasonable person standard with respect to children, as the next case illustrates.

Bauman v. Crawford, Supreme Court of Washington (1985)
(104 Wash.2d 241) En Banc
This appeal requires us to decide whe ther the negligence pe r se doctrine should be applicable to
minors, or whether minors should instead be judged only by the spe cial child’s standard of care in
a civil negligence action. We hold that a minor’s violation of a statute does not constitute proof
of negligence per se, but may, in proper cases, be introduced as evidence of a minor’s negligence.
Accordingly, we reve rse the de cision of the Court of Appeals. Bauman v. Crawford, 38 Wash. App. 301
(1984).

Negligence Per Se and Res Ipsa Loquitur | 339

On April 24, 1979, at approximately 9:30 p.m., the bicycle ridden by petitioner Donald Bauman collided
with the automobile driven by respondent. Petitioner was 14 years 4 months old at that time. The
collision occurred after dark on a public street in Seattle. Petitioner was riding his bicycle down a
steep hill; as he reached the base of the hill, respondent turned left in front of petitioner and the
collision resulted. Petitioner’s bicycle was equipped with reflectors, but had no headlight. Seattle
Municipal Code *243 11.44.160 and RCW 46.61.780(1) each require a he adlight on a bicycle operated
after dark. In the collision, petitioner suffered a broken lower leg (tibia and fibula) which required
three

surgeries during the 6 weeks immediately following the

accident. Overall, petitioner was

hospitalized 10 days, had a cast for about 2 months, and required crutches to ambulate for several
weeks after cast removal.
Petitioner, through his guardian ad litem, sued respondent for damages. Respondent’s answer alleged
contributory negligence by petitioner as an affirmative defense.
The trial court instructed the jury that violation of an ordinance is negligence per se. The court
also instructed the jury that the standard of ordinary care for a child is the care that a reasonably
careful child of the same age, intelligence, maturity, training and experience would exercise under
similar circumstances. The jury rendered a verdict of $8,000 for petitioner, reduced by 95 percent for
petitioner’s contributory negligence. Thus, the final verdict was $400 for petitioner.
Petitioner contends it was reversible error for the court to instruct on negligence pe r se be cause
he is a minor. He further contends that it was reversible error for the court to give the negligence
per se instruction in combination with the spe cial child’s standard of care instruction because these
instructions are contradictory to one another. Petitioner argued to the Court of Appeals, and now
urges before this court, that negligence pe r se is inapplicable to minors under all circumstances.
He urges that the spe cial child’s standard of care is the proper standard to be applie d to a minor,
notwithstanding violation of a statute or ordinance.
The Court of Appeals, relying on Everest v. Riecken, 30 Wash.2d 683 (1948), declined to hold that
the negligence pe r se doctrine is inapplicable to minors. In Everest, this court held that a 15-yearold bicyclist was negligent per se for riding his bicycle after dark without a light, in violation of law.
There, this court declined to hold *244 that the child’s minority excused him from the operation of
the negligence pe r se doctrine, but did so with no discussion of the policies underlying the negligence
per se doctrine or the child’s standard of care. After careful reconsideration of those policies, we
have de termined that the policies underlying the doctrine of negligence pe r se clash with the policies
underlying the spe cial child’s standard of care. We therefore overturn the Everest case to the e xtent
that it is incompatible with our holding today.
In Washington, a child under 6 years old cannot be he ld to be contributorially [sic] negligent. Graving
v. Dorn, 63 Wash.2d 236 (1963). Conversely, a 17 or 18-year-old of normal capacity may be treated as
an adult in all cases. Dingwall v. McKerricher, 75 Wash.2d 352 (1969). Accordingly, the de cision in this
case applies only to minors 6 to 16 years of age. Generally, contributory negligence of minors in this
age group is a question for the trier of fact. Graving v. Dorn, supra.
Washington has long recognized the spe cial standard of care applicable to children: a child’s conduct
340 | Negligence Per Se and Res Ipsa Loquitur

is measured by the conduct of a reasonably careful child of the same age, intelligence, maturity,
training and experience. Robinson v. Lindsay, 92 Wash.2d 410, 412 (1979); Roth v. Union Depot Co., 13
Wash. 525 (1896). The rationale for the spe cial child’s standard of care is that a child is lacking in
the judgment, discretion, and experience of an adult; thus, the child’s standard of care allows for
the normal incapacities and indiscretions of youth. [cc] Most significantly, the child’s standard was
created because public policy dictates that it would be unfair to predicate legal fault upon a standard
most children are incapable of meeting. Thus, the fact of minority is not what lowers the standard;
rather, the child’s immaturity of judgment and lack of capacity to appreciate dangers justifies a special
child’s standard. *245 [***]
A primary rationale for the negligence pe r se doctrine is that the Legislature has de termined the
standard of conduct expected of an ordinary, reasonable pe rson; if one violates a statute, he is no
longer a reasonably prudent person. [cc] Negligence pe r se e xists when a statute or ordinance is
violated, and that law is designed to (a) protect a class of persons which includes the person whose
interest is invaded, (b) protect the particular interest which is invaded, (c) protect against the kind of
harm which resulted, and (d) protect that interest against the particular hazard from which the harm
results. [c]
A majority of courts in states which apply the negligence pe r se doctrine to adults have recognized
a fundamental conflict between that doctrine and the spe cial child’s standard of care. See Finch v.
Christensen, 84 S.D. 420 (1969) (negligence pe r se inapplicable to 11-year-old bicyclist riding at night
without a light [cc]. Scholarly commentary also overwhelmingly supports the vie w that negligence per
se is inapplicable to children. See 37 Tex. L. Rev. 255 (1958); 26 S. Cal. L. Rev. 335 (1953); Annot., Child’s
Violation of Statute or Ordinance as Affecting Question of His Negligence or Contributory Negligence,
174 A.L.R. 1170 (1948); Mertz, The Infant and Negligence Per Se in Pennsylvania, 51 Dick. L. Rev. 79 (1946);
3 Vand. L. Rev. 145 (1949).
The majority rule is base d upon the policy considerations underlying each doctrine. These courts
and commentators recognize that application of negligence pe r se to children abrogates the special
standard of care for children; such *246 abrogation violates the public policy inherent in the spe cial
child’s standard. These courts and commentators also recognize that refusal to consider a child’s
minority in effect substitutes a standard of strict liability for the criterion of the reasonable child.
Conversely, the minority of courts willing to impose negligence pe r se on children do so, for the
most part, without discussion of the policy considerations underlying the two doctrines at issue
here. Often, a mechanistic statutory construction is applied to foreclose any consideration of the
child’s maturity level, experience, age, or intelligence. These courts reason that if the legislature did
not specifically exclude children from the requirements of the statute, then all persons, including
children, are required to behave in accordance with that statute. See Sagor v. Joseph Burnett Co., 122
Conn. 447 (1937) (no exception to negligence pe r se doctrine for children; the terms of the statute are
clear and precise); D’Ambrosio v. Philadelphia, 354 Pa. 403 (1946) (the law applies equally to adults and
children unless it specifically excludes children).
Similarly, the Court of Appeals in the present case was persuaded that the Washington Legislature
intended that children be held negligent per se for violation of the statute involved in this case. In
Negligence Per Se and Res Ipsa Loquitur | 341

1965 the Legislature repealed RCW 46.47.090 which specifically stated that no child under 16 shall
be held to be negligent per se for any violation of the statute. [***] The Court of Appeals interprets
this deletion from the statute as proof that the Legislature intends that negligence pe r se be applie d
whenever the statute is violated by a child. [***] The legislative history of the repealed provision is
*247 unavailable, so it is impossible to ascertain the actual legislative intent. It is significant, however,
that the entire motor vehicle code was being revised at the time this provision was repealed. Thus,
the Legislature did not single out this statute for special treatment, but merely changed it as part of
an overall revamping of the code. Furthermore, negligence pe r se and the child’s standard of care are
both court-created doctrines. Accordingly, we presume the Legislature, by its change, intended to
return to the courts the decision whether to apply negligence per se to minors under 16 years of age.
A significant number of the

courts which decline

to apply negligence

pe r se

to minors have

determined that violation of a statute by a minor may be introduced as evidence of negligence, as
long as the jury is clearly instructed that the minor’s behavior is ultimately to be judged by the spe cial
child’s standard of care. [cc]
We agree with these courts that allowing a statutory violation to be introduced simply as one factor
to be considered by the trier of fact is an equitable resolution of the dilemma created by a minor’s
violation of law. We therefore remand for a new trial on the issue of liability under proper instructions.
At that trial the jury must be instructed as to the spe cial child’s standard of care. The jury may then
5

be instructed that violation of a relevant statute may be considered *248 as evidence of negligence
only if the jury finds that a reasonable child of the same age, intelligence, maturity and experience as
petitioner would not have acted in violation of the statute under the same circumstances.
[***] [W]e hold that our ruling today, which exempts minors from the operation of the negligence
per se doctrine, shall apply prospectively. However, the rule shall also apply to any case already tried
where the issue of the doctrine’s application to a minor was preserved for appeal.
BRACHTENBACH, Justice (concurring).
I concur in the rationale and result of the majority but I am convinced that in the appropriate case
this court should reexamine the e ntire the ory of negligence pe r se arising from the alleged violation
of a statute, an ordinance or an administrative regulation. This court has long been committed to the
rule that violation of a positive statute constitutes negligence per se. In Engelker v. Seattle Elec. Co., 50
Wash. 196 (1908), the court noted that some jurisdictions follow the rule that a violation of a statute
is mere e vidence of negligence but it adopted the doctrine “that a thing which is done in violation of
positive law is in itself negligence.” Engelker, at 199. This rule has be en applied to violations of statutes,
ordinances and regulations, Cook v. Seidenverg, 36 Wash.2d 256 (1950) [***] The Restatement (Second)
of Torts § 286 (1965) adopted the test of the relevancy of the statute to the tortious action. Where
the relevancy test is met and where there e xists prima facie a discernible causal connection between

5. A statute must still be shown to be applicable under the negligence per se test before its violation may be introduced
even as mere evidence of negligence. That is, the statute must be designed to protect the proper class of persons, to
protect the particular interest involved, and to protect against the harm which results. See Young v. Caravan Corp., 99
Wash.2d 655, 663 P.2d 834 (1983). Thus, only relevant statutory violations will be admitted.
342 | Negligence Per Se and Res Ipsa Loquitur

the violation of the statute and the injury, the jury is properly advised that the violation amounts to
negligence pe r se and proximate cause then *250 become s the sole issue of fact to be resolved by the
trier of fact. [***]
The rule, however, has not been applied with relentless indifference to actual fault. A violation of
statute has be en held not to constitute negligence per se where the violation is due to some cause
beyond the violator’s control, and which reasonable prudence could not have guarded against [c];
where the violation is due to an emergency [c]; where the violation is merely technical; where the
violation is perpetuated out of necessity [c]; or where the violator is not given notice that his actions
were in violation of the law [c].
[***] This 77-year-old doctrine has be en the subject of exceptions almost since its adoption. Perhaps
it is time we stoppe d selectively placing the negligence question within “rational judicial control” and
place it, in all cases, in the rational control of the trier of fact, where it belongs.
The finding of negligence is normally a task for the trier of fact. Through the application of the
negligence pe r se doctrine we have taken that task away from the jury and the court now decides
when a violation of statute constitutes negligence. It is evident from the numerous exceptions to
the doctrine that the court is not merely applying a statute to the tortious action, but determining
from the total factual circumstances whether or not the statute violator *251 was negligent at all.
I, therefore, advocate true rational control of the negligence doctrine through the return of the
negligence question to the trier of fact in cases involving evidence of a violation of statute.
Currently, the majority of American jurisdictions follow the negligence pe r se doctrine and find that
a breach of statutory duty is a breach of standard of care for civil negligence cases. Seven states
6

follow the the ory that a breach of a statutory duty is evidence of negligence in civil action, while five
states hold that a violation of a statute is prima facie ne gligence which may be rebutted by competent
7

evidence. In addition, some of the courts which follow the majority rule as to statutes have held that
the breach of ordinances, or traffic laws, or the regulations of administrative bodies is only evidence
for the jury. Such cases seem to indicate a desire to le ave some le eway for cases where a violation may
not be necessarily unreasonable. [c]
The English rule is to consider a breach of a statutory duty a tort in itself. The Canadian Supreme
Court recently reviewed both the

English rule

and the

Ame rican rules and chose to follow the

American minority rule which considers the violation to be mere e vidence of negligence. The Queen
v. Saskatchewan Wheat Pool, 143 D.L.R.3d 9 (1983); see also Note, Negligence and Breach of Statutory
Duty, 4 Oxford J. Legal Stud. 429 (1984). As indicated by the Canadian de cision, criticism of the *252

6. Franco v. Bunyard, 261 Ark. 144, cert. denied, 434 U.S. 835, (1977); Eagan v. Marr Scaffolding Co., 14 Mass. App. 1036 (1982),
review denied, 445 N.E.2d 156 (1983); Fisher v. O’Connor’s, Inc., 53 Md. App. 338 (1982); Floridia v. Farlee, 201 Neb. 39
(1978); Braitman v. Overlook Terrace Corp., 68 N.J. 368 (1975); Burns v. Bombard, 128 Vt. 178, 260 A.2d 219 (1969); Distad v.
Cubin, 633 P.2d 167 (Wyo.1981).
7. Stephens v. State, 440 So.2d 920 (La.Ct.App.1983), cert. denied, 443 So.2d 1119 (1984); Agnello v. Puzzo, 110 Ill.App.3d 913
(1982); Dongo v. Banks, 448 A.2d 885 (Me.1982); Hall v. Warren, 632 P.2d 848 (Utah 1981); Vandergrift v. Johnson, 157 W.Va.
958 (1974).
Negligence Per Se and Res Ipsa Loquitur | 343

negligence pe r se doctrine is mounting in the courts. Authors of treatises and journal articles are
also increasingly critical of the doctrine and write favorably of the e vidence-of-negligence doctrine.
Objection is made to the court’s inferring a legislative intent to create a standard of care in civil
cases where the Le gislature is silent. The main criticism is that it is difficult to discover the bases on
which the courts either find or refuse to find these fictional intentions. Alexander, Legislation and the
Standard of Care in Negligence, 42 Can. B. Rev. 243 (1964).
The most widely accepted rationale for the negligence pe r se rule is that the reasonable man always
obeys the criminal law, thus, a breach of the criminal law must be unreasonable and, therefore,
negligent. Thayer, Public Wrong and Private Action, 27 Harv. L. Rev. 317 (1913–14). The basic flaw in
this rationale and in inferring legislative intent is the fact that the criminal proscriptions may be ill
conceived, hastily drawn with inadequate investigation or obsolete and, yet, the validity of the statute
will not be before the court in the negligence action. The Legislature has not considered the policy
problems peculiar to civil liability nor has it composed the legislation in terms of a standard of due
care in damage suits or for judging negligence. Morris, The Role of Criminal Statutes in Negligence
Actions, 49 Colum. L. Rev. 21, 39–43 (1949). Reliance on the Le gislature for a standard of reasonableness
under these circumstances would not make for the wisest decision.
A second rationale for finding legislative intent to create a standard of care in civil cases is that the
Legislature recognizes that the negligence pe r se rule is ne eded to promote and fulfill reliance by
others on uniform obedience to statutes. However, where the Le gislature does not explicitly impose
automatic liability in a civil action as a sanction, the court is encroaching on legislative territory when
it adds such a sanction for the purposes of law enforcement. Further, “[n]either in fact nor in law do
others have the right under all circumstances to rely on the actor’s obedience to statute.” [c]
*253 Further criticism of the negligence pe r se doctrine arises because of the differences between
the criminal and civil systems. Lawmakers may be contented with a broad unqualified requirement in
a criminal statute be cause the y knew that enforcement officials would use their discretion to make
exceptions in cases where literal compliance made no se nse or worked a hardship. In a civil action
on the other hand, where large damages are often at stake, the injured party cannot be e xpected to
jeopardize his claim by forgiving noncompliance in e xceptional cases, as a public prosecutor would.
[c]. Additionally, civil defendants do not have the ability to avail themselves of criminal procedural
defenses and protections against an inflexible application of the criminal standard.
Criticism is also made

be cause

of the

imposition of liability without fault. As noted above, the

Washington courts have joine d in this criticism and produced multiple e xceptions in order to avoid
this aspect of the doctrine. This exception-finding approach produces a weakened doctrine and
ultimately places the jury’s task of determining negligence with the court under all circumstances.
Such an approach also leads to distorted statutory construction which affects the criminal law as well.
The defect in our prior reasoning is that the negligence pe r se doctrine removes the determination of
negligence from the fact-finding function of the jury, or the court sitting as a fact finder. While it is a
convenient method to affix liability, it runs counter to the basic notion of determining tort liability. I
would prospectively limit the doctrine to an evidence of negligence standard.

344 | Negligence Per Se and Res Ipsa Loquitur

Note 1. In some instances, a statutory violation may be use d to establish duty; in others, it may be use d
as evidence of breach (or as conclusive of breach). What is the practical difference?
Note 2. Rationales Negligence Per Se. Bauman observes variations in 12 states and three countries
relative to how they consider and apply negligence per se. Identify the rationales for the doctrine. Are
you more persuaded by the rationales for negligence per se or by critiques of the doctrine?
Note 3. Authority Issues. The the me of Palsgraf’s fight over decisional authority on the question
of negligence continues. Does it strike you as fair, efficient, or otherwise good for tort law to use
negligence pe r se to de termine breach? How about merely to offer evidence of breach? Would you
distinguish its use base d on the kind of statute? The category of harm? The kind of actor alleged to
have breached their duty or violated the statute?
Note 4. Excuse. Bauman identifies a number of instances in which the violation of a statute may be
excused. What are they?
Excused Violations Restatement (3d) on Torts § 15.
Restatement (3d) on Torts: Liability for Physical Harm (adopted 2005; published 2010)
An actor’s violation of a statute is excused and not negligence if:
(a) the violation is reasonable in light of the actor’s childhood, physical disability, or physical
incapacitation;
(b) the actor exercises reasonable care in attempting to comply with the statute;
(c) the actor neither knows nor should know of the factual circumstances that render the
statute applicable;
(d) the actor’s violation of the statute is due to the confusing way in which the requirements of
the statute are presented to the public; or
(e) the actor’s compliance with the statute would involve a greater risk of physical harm to the
actor or to others than noncompliance.
Is the use of negligence per se, and rules of law that create e xcuses for violation, effectively making
breach into a categorical inquiry, like duty? What do you think of this in terms of your understanding
of the proper role for the judge and jury? The ne xt case is a classic opinion on these issues, brought to
you again by Justice Cardozo.

Martin v. Herzog, Court of Appeals of New York (1920)
(228 N.Y. 164)
The action is one to recover damages for injuries resulting in death.
Plaintiff and her husband, while driving toward Tarrytown in a buggy on the night of August 21, 1915,
were struck by the defendant’s automobile coming in the opposite direction. They were thrown to the
Negligence Per Se and Res Ipsa Loquitur | 345

ground, and the man was killed. At the point of the collision the highway makes a curve. The car was
rounding the curve, when suddenly it came upon the buggy, emerging, the defendant tells us, from
the gloom. Negligence is charged against the defendant, the driver of the car, in that he did not keep
to the right of the center of the highway. Highway Law, § 286, subd. 3, and section 332 (Consol. Laws,
c. 25). Negligence is charged against the plaintiff’s intestate, the driver of the wagon, in that he was
traveling without lights. Highway Law, § 329a, as amended by Laws 1915, c. 367.
There is no e vidence *167 that the defendant was moving at an excessive spe ed. There is none of
any defect in the e quipment of his car. The be am of light from his lamps pointed to the right as the
wheels of his car turned along the curve toward the left; and, looking in the direction of the plaintiff’s
approach, he was peering into the shadow. The case against him must stand, therefore, if at all, upon
the divergence of his course from the center of the highway. The jury found him delinquent and his
victim blameless. The Appellate Division reversed, and ordered a new trial.
We agree with the Appellate Division that the charge to the jury was erroneous and misleading. [***]
In the body of the charge the trial judge said that the jury could consider the absence of light ‘in
determining whether the plaintiff’s intestate was guilty of contributory negligence in failing to have
a light upon the buggy as provided by law. I do not mean to say that the absence of light necessarily
makes him negligent, but it is a fact for your consideration.’
The defendant requested a ruling that the absence of a light on the plaintiff’s vehicle was ‘prima facie
evidence of contributory negligence.’ This request was refused, and the jury were again instructed
that they might consider the absence of lights as some e vidence of negligence, but that it was not
conclusive evidence.
The plaintiff then requested a charge that ‘the fact that the plaintiff’s intestate was driving without
a light is not negligence in itself,’ and to this the court acceded. The defendant saved his rights by
appropriate exceptions.
*168 We

think the

une xcused omission of the

statutory signals is more

than some

e vidence

of

negligence. It is negligence in itself.
Lights are intended for the guidance and protection of other travelers on the highway. Highway Law,
§ 329a. By the very terms of the hypothesis, to omit, willfully or heedlessly, the safeguards prescribed
by law for the benefit of another that he may be preserved in life or limb, is to fall short of the standard
of diligence to which those who live in organized society are under a duty to conform. That, we think,
is now the established rule in this state. [***]
A rule less rigid has been applied where the one who complains of the omission is not a member
of the class for whose protection the safeguard is designed. [***] In the case at hand, we have an
instance of the admitted violation of a statute intended for the protection of travelers on the highway,
of whom the defendant at the time was one. Yet the jurors were instructed in effect that they were at
liberty in their discretion to treat the omission of lights either as innocent or as culpable. They were
allowed to ‘consider the default as lightly or gravely’ as they would (Thomas, J., in the court below).
They might as well have be en told that they could use a like discretion in holding a master at fault for
the omission of a safety appliance prescribed by positive law for the protection of a workman. Jurors
346 | Negligence Per Se and Res Ipsa Loquitur

have no dispensing power, by which they may relax the duty that one traveler on the highway owes
*170 under the statute to another. It is error to tell them that they have. The omission of these lights
was a wrong, and, being wholly unexcused, was also a negligent wrong. No license should have be en
conceded to the triers of the facts to find it anything else.
We must be on our guard, however, against confusing the question of negligence with that of the
causal connection between the negligence and the injury. A defendant who travels without lights is
not to pay damages for his fault, unless the absence of lights is the cause of the disaster. A plaintiff
who travels without them is not to forfeit the right to damages, unless the absence of lights is at least
a contributing cause of the disaster. To say that conduct is negligence is not to say that it is always
contributory negligence. ‘Proof of negligence in the air, so to speak, will not do.’ Pollock Torts (10th
Ed.) p. 472.
We think, however, that evidence of a collision occurring more than an hour after sundown between
a car and an unseen buggy, proceeding without lights, is evidence from which a causal connection
may be inferred between the collision and the lack of signals. [c] If nothing else is shown to break the
connection, we have a case, prima facie sufficient, of negligence contributing to the result.
There may, indeed, be times when the lights on a highway are so many and so bright that lights on a
wagon are superfluous. If that is so, it is for the offender to go forward with the e vidence, and prove
the illumination as a kind of substituted performance. The plaintiff asserts that she did so here. She
says that the scene of the accident was illumined by moonlight, by an electric lamp, and by the lights of
the approaching car. Her position is that, if the defendant did not see the buggy thus illumined, a jury
might reasonably infer that he would not have se en *171 it anyhow. We may doubt whether there is any
evidence of illumination sufficient to sustain the jury in drawing such an inference; but the decision
of the case does not make it necessary to resolve the doubt, and so we le ave it open. It is certain that
they were not required to find that lights on the wagon were superfluous. They might reasonably have
found the contrary. They ought, therefore, to have be en informed what effect they were free to give,
in that event, to the violation of the statute. They should have be en told, not only that the omission of
the light was negligence, but that it was ‘prima facie e vidence of contributory negligence’; i. e., that it
was sufficient in itself unless its probative force was overcome (Thomas, J., in court below) to sustain
a verdict that the decedent was at fault. [c]
Here, on the undisputed facts, lack of vision, whether excusable or not, was the cause of the disaster.
The defendant may have be en negligent in swerving from the center of the road; but he did not run
into the buggy purposely, nor was he driving while intoxicated, nor was he going at such a reckless
speed that warning would of necessity have be en futile. Nothing of the kind is shown. The collision was
due to his failure to se e at a time when sight should have be en aroused and guided by the statutory
warnings. Some e xplanation of the effect to be given to the absence of those warnings, if the plaintiff
failed to prove that other lights on the car or the highway took their place as e quivalents, should have
been put before the jury. The explanation was asked for and refused.
We are persuaded that the tendency of the charge, and of all the rulings, following it, was to minimize
unduly, in the minds of the triers of the facts, the gravity of the de cedent’s fault. Errors may not be
ignored as unsubstantial, when they tend to such an outcome. A statute designed for the protection
Negligence Per Se and Res Ipsa Loquitur | 347

of human life is not to be brushe d aside as a form of words, its commands reduced *172 to the le vel of
cautions, and the duty to obey attenuated into an option to conform.
The

order of the Appellate

Division should be

affirmed, and judgment absolute

directed on the

stipulation in favor of the defendant, with costs in all courts.
HOGAN, J. (dissenting).
Upon the trial of this action, a jury rendered a verdict in favor of the plaintiff. Defendant appealed
from the judgment entered thereon, and an order made denying an application to set aside the verdict
and for a new trial, to the Appellate Division. The latter court reversed the judgment on the law, and
granted a new trial on questions of law only; the court having examined the facts and found no error
therein. The decision thus made was equivalent to a determination by the court that it had passed
upon the question of the sufficiency of the e vidence, and as to whether the verdict rendered by the
jury was against the weight of evidence. The effect of that decision was that the order denying the
motion to set aside the verdict and grant a new trial was upon the facts properly denied. Judson v.
Central Vt. R. Co., 158 N. Y. 597, 602. A jury and the Appellate Division having determined that, upon
the facts developed on the trial of the action, the plaintiff was entitled to recover, in view of certain
statements in the prevailing opinion, and for the purpose of explanation of my dissent, I shall refer to
the facts which were of necessity found in favor of plaintiff, and approved by the Appellate Division.
The following facts are undisputed:
Leading from Broadway, in the village of Tarrytown, Westchester county, is a certain public
highway, known as Neperham road, \ which runs in an easterly direction to East View, town
of Greenburg. The worked portion of the highway varies in width from 21 1/2 feet at the
narrowest point, a short distance e asterly of the place of the collision hereinafter mentioned,
to a width of *173 27 1/2 feet at the point where the collision occurred.
On the e vening of August 21, 1915, the plaintiff, together with her husband, now deceased, were se ated
in an open wagon drawn by a horse. They were traveling on the highway westerly towards Tarrytown.
The defendant was trave ling alone on the highway in the opposite direction, viz. from Tarrytown
easterly towards East View, in an automobile which weighed about 3,000 pounds, having a capacity of
70 horse power, capable of developing a speed of 75 miles an hour. Defendant was driving the car.
A collision occurred between the two vehicles on the highway, at or near a hydrant located on the
northerly side of the road. Plaintiff and her husband were thrown from the wagon in which they were
seated. Plaintiff was bruised and her shoulder dislocated. Her husband was seriously injured and died
as a result of the accident. The plaintiff, as administratrix, brought this action to recover damages
arising by reason of the de ath of her husband, caused, as she alleged, solely by the negligence of
defendant in operating, driving, and running the automobile at a high, unlawful, excessive, and unsafe
rate of speed, in failing to blow a horn or give any warning or signal of the approach of said automobile,
and in operating, driving, and riding said automobile at said time and place upon his left-hand or
wrongful side of said road or highway, thereby causing the death of her husband.
Defendant by his answer admitted that he was operating the automobile , put in issue the remaining
348 | Negligence Per Se and Res Ipsa Loquitur

allegations of the complaint, and affirmatively alleged that any injury to plaintiff’s intestate was caused
by his contributory negligence. As indicated in the prevailing opinion, the manner in which the
accident happened and the point in the highway where the collision occurred are important facts in
this case, for as therein stated:
‘The case against him [defendant] *174 must stand, therefore, if at all, upon the divergence of
his course from the center of the highway.’
The e vidence on behalf of plaintiff tended to establish that on the e vening in question her husband
was driving the horse at a jogging gait along on the right side of the highway near the grass, which
was outside of the worked part of the road on the northerly side thereof; that plaintiff observed about
120 feet down the road the automobile operated by defendant approaching at a high rate of speed,
two searchlights upon the same, and that the car seemed to be upon he r side of the road; that the
automobile ran into the wagon in which plaintiff and her husband were se ated at a point on their
side of the road, while the y were riding along ne ar the grass. Evidence was also presented tending to
show that the rate of speed of the automobile was 18 to 20 miles an hour and the lights upon the car
illuminated the entire road. The defendant was the sole witness on the part of the defense upon the
subject under consideration. His version was:
‘Just before I passe d the Tarrytown Heights station, I noticed a number of children playing in
the road. I slowed my car down a little more than I had be en running. I continued to drive
along the road; probably I proceeded along the road 300 or 400 feet further, I do not know
exactly how far, when suddenly there was a crash, and I stopped my car as soon as I could
after I realized that there had be en a collision. Whether I saw anything in that imperceptible
fraction of space before the wagon and car came together I do not know. I have an impression,
about a quarter of a second before the collision took place, I saw something white cross the
road and heard somebody call ‘whoa,’ and that is all I knew until I stopped my car. * * * My
best judgment is I was traveling about 12 miles an hour. * * * At the time of the collision I was
driving on the right of the road.’
*175 The manne r in which and the point in the highway where the accident occurred presented a
question of fact for a jury. If the testimony of defendant was accredited by the jury, plaintiff and
her intestate, having observed the approaching automobile deliberately, thoughtlessly, or with an
intention to avoid the same, left their side of the road at a moment when an automobile was rapidly
approaching with lights illuminating the road, to cross ove r to the side of the highway where the
automobile should be, and as claimed by defendant was traveling, and thereby collided with the same,
or, on the contrary, defendant was driving upon his left side of the road and caused the collision.
The trial justice charged the jury fully as to the claims of the parties, and also charged that the
plaintiff in her complaint specifically alleged the acts constituting negligence on the part of defendant
(amongst which was that he was driving on the wrong side of the road, thereby causing the de ath of
her husband, the alleged absence of signals having been eliminated from the case), and in order to
recover the plaintiff must show that the accident happened in the way and in the manne r she has
alleged in her complaint.

Negligence Per Se and Res Ipsa Loquitur | 349

‘It is for you to determine whether the defendant was driving on the wrong side of the road at the
time he collided with the buggy; whether his lights did light up the road, and the whole road, ahead
of him to the e xtent that the buggy was visible, and so, if he negligently approached the buggy in
which plaintiff and her husband were driving at the time. If you find, from the e vidence here, he was
driving on the wrong side of the road, and that for this reason he collided with the buggy, which was
proceeding on the proper side, or if you find that as he approached the buggy the road was so well
lighted up that he saw or should have se en the buggy, and yet collided with it, then you may say, if you
so find, that the defendant was careless and negligent.’
No exception was taken by the defendant to that charge, but at the *176 close of the charge counsel
for defendant made certain requests to charge upon the subject as follows:
‘(1) If the jury find that Mr. Martin was guilty of any negligence, no matter how slight, which
contributed to the accident, the verdict must be for defendant.
‘(2) In considering the photographs, and consideration of which side of the vehicle, wagon,
was damaged, that the jury have no right to disregard physical facts, and unless they find the
accident happened as described by Mrs. Martin and Mrs. Cain, the verdict must be for the
defendant.
‘(3) The plaintiff must stand or fall on her claim as made, and, if the jury do not find that the
accident happened as substantially claimed by her and her witnesses, that the verdict of the
jury must be for defendant.
‘(4) It was the duty of Mr. Martin to keep to the right.’
Each one of the se veral requests was charged, and in addition the trial justice charged that if the
deceased, Mr. Martin, collided with the automobile while the wagon was on the wrong side of the road,
the verdict must be for defendant. The principal issue of fact was not only presented to the jury in the
original charge made by the trial justice, but emphasized and concurred in by counsel for defendant.
The prevailing opinion, in referring to the accident and the highway at the point where the accident
occurred, describes the same in the following language:
‘At the point of the collision the highway makes a curve. The car was rounding the curve, when
suddenly it came upon the buggy, emerging, the defendant tells us, from the gloom.’
Such in substance was the testimony of the defendant, but his version was rejected by the jurors
and the Appellate Division, and the e vidence in the record is ample to sustain a contrary conclusion.
As to the statement that the car was rounding ‘a curve, ‘*177 two maps made by engineers from
actual measurements and surveys for defendant were put in e vidence by counsel for plaintiff. Certain
photographs, made for the purposes of the trial, were also before the jury. I think we may assume
that the jurors gave credence to the maps and actual measurements, rather than to the photographs,
and failed to discover therefrom a curve

of any importance, or which would interfere

with an

unobstructed view of the road. As to the ‘buggy emerging, the defendant tells us, from the gloom,’
evidence was adduced by plaintiff tending to show that the se archlights on defendant’s car lighted
up the entire roadway to the e xtent that the vehicle in which plaintiff and her husband were riding
350 | Negligence Per Se and Res Ipsa Loquitur

was visible; that the e vening was not dark, though it appeared as though a rainfall might be e xpected.
Some witnesses testified it was moonlight. The doctor called from Tarrytown, who arrived within 20
minutes after the collision, testified that the electric lights all along the highway were burning as he
passed over the road. The width of the worked part of the highway at the point of the accident was 27
1/2 feet. About 25 feet westerly on the southerly side was located an electric light, which was burning.
A line drawn across the highway from that light to the point of the accident would be about 42 feet.
One witness called by plaintiff lived in a house directly across the highway from the point of the
accident. Seated in a front room, it was sufficiently light for her to see plaintiff’s intestate whe n he was
driving along the road at a point near a telegraph pole, which is shown on the map some 90 or 100 feet
easterly of the point of the accident, when she observed him turn his horse into the right towards the
fence. Soon thereafter she heard the crash of the collision, and immediately went across the highway
and found Mr. Martin in a sitting position on the grass. A witness called by the *178 defendant testified
that she was on the stoop of her house, which is across the highway from the point of the accident
and about 40 feet distant from said point, and while se ated there she could see the body of Mr. Martin.
While she te stified the e vening was dark, the lights on the highway were sufficient to enable her to see
the body of Mr. Martin lying upon the grass 40 feet distant. The defendant upon cross-examination
was confronted with his testimony given before the coroner, where he te stified that the road was
‘fairly light.’
The facts narrated were passe d upon by the jury under a proper charge relating to the same, and
were sustaine d by the Appellate Division. The conclusions deducible therefrom are: (a) Defendant was
driving his car upon the wrong side of the road. (b) Plaintiff and her intestate were driving a horse
attached to the wagon in which they were se ated upon the e xtreme right side of the road. (c) The
highway was well lighted. The e vening was not dark. (d) Defendant collided with the vehicle in which
plaintiff and her husband were riding and caused the accident.
I must here note the fact that concededly there was no light upon the wagon in which plaintiff and her
husband were riding, in order that I may express my views upon additional phrases in the prevailing
opinion Therein it is stated:
*819 ‘there may, indeed, be times when the lights on a highway are so many and so bright that
lights on a wagon are superfluous.’
I am in accord with that statement, but I dissent from the suggestion we may doubt whether there is
any evidence of illumination sufficient to sustain the jury in drawing the inference that, if defendant
did not see the buggy thus illumined, it might reasonably infer that he would not have se en it anyway.
Further the opinion states:
‘Here on the undispute d facts lack of vision, whether excusable or not, was the cause of the
disaster. The defendant may have be en negligent in swerving from the center of the road, but
*179 did not run into the buggy purposely, nor was he driving while intoxicated, nor was he
going at such a reckless rate of speed that warning would of necessity be futile. Nothing of this
kind is shown.’

Negligence Per Se and Res Ipsa Loquitur | 351

As to the rate of speed of the automobile, the evidence adduced by plaintiff’s witnesses was from 18
to 20 miles an hour, as ‘very fast’; further that after the collision the car proceeded 100 feet before it
was stopped. The defendant testified that he was driving about 12 miles an hour, that at such rate of
speed he thought the car should be stoppe d in 5 or 6 feet, and though he put on the foot brake, he ran
20 feet before he stoppe d. The jury had the right to find that a car traveling at the rate of 12 miles an
hour, which could be stoppe d within 5 or 6 feet, and with the foot brake on, was not halted within 100
feet, must at the time of the collision have be en running ‘very fast,’ or at a reckless rate of speed, and
therefore warning would of necessity be futile. No claim was made that defendant was intoxicated,
or that he purposely ran into the buggy. Nor was proof of such facts essential to plaintiff’s right to
recover. This case does not differ from many others, wherein the failure to e xercise reasonable care
to observe a condition is disclosed by evidence and properly held a question of fact for a jury. In the
earlier part of the prevailing opinion, as I have pointed out, the statement was:
‘The case against him [defendant] must stand or fall, if at all, upon the divergence of his course
from the center of the highway.’
It would appear that ‘lack of vision, whether excusable or not, was the cause of the disaster,’ had been
adopted in lieu of divergence from the center of the highway. I have therefore discusse d divergence
from the center of the road.
[***] My examination of the record leads me to the conclusion that lack of vision was not, on the
undisputed facts, the sole cause of the disaster. Had the defendant been upon his right side of the
road, upon the plaintiff’s theory he might have be en driving recklessly, *180 and, the plaintiff and her
intestate being near to the grass on the northerly side of a roadway 27 feet and upwards in width,
the accident would not have happened, and the presence of or lack of vision would not be material.
If, however, as found by the jury, defendant was wrongfully on plaintiff’s side of the road and caused
the accident, the question of whether or not, under the facts, in the e xercise of reasonable care, he
might have discovered his error and the presence of plaintiff, and thereupon avoid the collision, was
for the jury. The question was presented whether or not, as defendant approached the wagon, the
roadway was so well lighted up that defendant saw, or in the e xercise of reasonable care could have
seen, the wagon in time to avoid colliding with the same, and upon that proposition the conclusion of
the jury was adverse to defendant, thereby establishing that the lights of the car on the highway were
equivalent to any light which, if placed upon the wagon of plaintiff, would have aroused the attention
of defendant, and that no causal connection existed between the collision and absence of a light on
the wagon.
At the close of the charge to the jury the trial justice was requested by counsel for defendant to charge:
‘That the failure to have a light on plaintiff’s ve hicle is prima facie e vidence of contributory
negligence on the part of plaintiff.’
The justice de clined to charge in the language stated, but did charge that the jury might consider it on
the question of negligence, but it was not in itself conclusive e vidence of negligence. For the refusal to
instruct the jury as requested, the judgment of the Trial Term was reversed by the Appellate Division.

352 | Negligence Per Se and Res Ipsa Loquitur

The request to charge was a mere abstract proposition. Even assuming that such was the law, it would
not bar a recovery by plaintiff, unless such contributory negligence was the proximate and not a
remote contributory cause of the injury. [***] The *181 request to charge e xcluded that important
requisite. The trial justice charged the jury that the burden rested upon plaintiff to establish by
the greater weight of evidence that plaintiff’s intestate’s death was caused by the negligence of the
defendant and that such negligence was the proximate cause of his death; that by ‘proximate cause,’
is meant that cause without which the injury would not have happened, otherwise she could not
recover in the action. In the course of his charge the justice enlarged on the subje ct of contributory
negligence, and in connection therewith read to the jury the provisions of the highway law, and then
charged that the jury should consider the absence of a light upon the wagon in which plaintiff and her
intestate were riding and whether the absence of a light on the wagon contributed to the accident.
At the request of counsel for defendant, the justice charged that, if the jury should find any negligence
on the part of Mr. Martin, no matter how slight, contributed to the accident, the verdict must be for
the defendant. I cannot concur that we may infer that the absence of a light on the front of the wagon
was not only the cause, but the proximate cause, of the accident. Upon the e vidence adduced upon
the trial and the credence attached to the same , the fact has been determined that the accident would
have be en avoided, had the defendant been upon his side of the road, or attentive to where he was
driving along a public highway, or had he be en driving slowly, used his sense of sight, and observed
plaintiff and her intestate as he approached them; they being visible at the time.
The defendant’s request to charge, which was granted, ‘that plaintiff must stand or fall on her claim
as made, and, if the jury do not find that the accident happened as substantially claimed by her and
her witnesses, that the verdict of the jury must be for the defendant,’ presented the question quite
succinctly. The jury found that the accident happened as claimed by the plaintiff and her witnesses,
and we cannot surmise or *182 infer that the accident would not have happened, had a light been
located on the wagon. [***]
It would not be profitable to refer to and analyze the nume rous decisions of this court upon the effect
of a violation of an ordinance or a statute. A large number of cases were cited in the opinions in the
Amberg Case. That case was decided upon the principle that, where a duty is imposed by statute and
a violation of the duty causes an injury, such violation is evidence of negligence as matter of law. [***]
The charge requested and denied in this case was in effect that a failure to have a light upon the
intestate’s wagon was as matter of law such negligence on his part as to defeat the cause of action,
irrespective of whether or not such negligence was the proximate cause of the injury. My conclusion
is that we are substituting form and phrases for substance, and diverging from the rule of causal
connection.
Order affirmed.
Note 1. What differences stood out to you in the two descriptions of fact represented in the majority
and dissenting opinions? Which strikes you as more careful? Which seems more persuasive?
Note 2. What is the legal significance of the plaintiff’s allegation that “the scene of the accident was
illumined by moonlight, by an electric lamp, and by the lights of the approaching car”?
Negligence Per Se and Res Ipsa Loquitur | 353

Note 3. What precisely was the error in the instruction to the jury, according to the majority opinion?
th

Res Ipsa Loquitur. This phrase is Latin for “the thing spe aks for itself.” Its use traces to a 19 -century
British case, Byrne v. Boadle, where it may have be en intended to do no more than provide fancy
Latin dicta suggestive of the court’s rationale. (There are also the ories that it intentionally sought to
expand liability and codify a series of earlier rulings; it is not entirely clear). Whatever the intended
purpose of the phrase, it has since e volved into something besides a mere placeholder or explanation.
Some courts treat it as a substantive doctrine and othe rs as a rule of evidence (whose precise effect
varies by jurisdiction). In this course, we will treat it as a rule of evidence with important substantive
implications. In brief, when evidence regarding the defendant’s breach of due care is unavailable,
mysterious, or inaccessible to plaintiff but not defendant, the doctrine of res ipsa loquitur (“RIL”) may
be de emed applicable by a judge (and then sent to be applie d by the jury, in most cases). The effect
and operation of the doctrine vary, but in all cases, its purpose is to he lp the plaintiff when their case
is otherwise fatally flawed on the question of what happened, or how their injuries came to about as
a function of the defendant’s negligence. Because RIL is being used to help the plaintiff’s case in some
way, the question of its application is held to fairly strict standards; not every mysterious accident
applies. The next case is commonly credited with being the source of the doctrine.

Byrne v. Boadle Court of Exchequer (1863)
(2 H. & C. 722, 159 Eng.Rep. 299)
[Action for negligence. The plaintiff’s evidence was that he was walking in a public street past the
defendant’s shop, and that a barrel of flour fell upon him from a window above the shop, knocked him
down, and seriously injured him. There was no other evidence. The Assessor was of the opinion that
there was no evidence of negligence for the jury, and nonsuited the plaintiff, reserving leave to him to
move the Court of Exchequer to enter the verdict for him for £50 damages. Plaintiff obtained a rule
nisi.]
Charles Russell [attorney for defendant] now shewed cause.
First, there was no evidence to connect the defendant or his servants with the occurrence. It is
consistent with the e vidence that the purchaser of the flour was superintending the lowering of it by
his servant, or it may be that a stranger was engaged to do it without the knowledge or authority of the
defendant. [Pollock, C.B. The presumption is that the defendant’s servants were engaged in removing
the defendant’s flour; if they were not it was competent to the defendant to prove it.]
Secondly, assuming the facts to be brought home to the de fendant or his servants, these facts do not
disclose any evidence for the jury of negligence. The plaintiff was bound to give affirmative proof of
negligence. But there was not a scintilla of evidence, unless the occurrence is of itself evidence of
negligence. There was not even evidence that the barrel was being lowered by a jigger-hoist as alleged
in the de claration. [Pollock, C.B. There are certain cases of which it may be said res ipsa loquitur, and

354 | Negligence Per Se and Res Ipsa Loquitur

this seems one of them. In some cases the Courts have held that the mere fact of the accident having
occurred is evidence of negligence, as, for instance, in the case of railway collisions.]
POLLOCK, C.B. We are all of opinion that the rule must be absolute to e nter the verdict for the
plaintiff. The le arned counsel was quite right in saying that there are many accidents from which no
presumption of negligence can arise, but I think it would be wrong to lay down as a rule that in no case
can a presumption of negligence arise from the fact of an accident. Suppose in this case the barrel
had rolled out of the warehouse and fallen on the plaintiff, how could he possibly ascertain from what
cause it occurred? It is the duty of persons who keep barrels in a warehouse to take care that they
do not roll out, and I think that such a case would, beyond all doubt, afford prima facie e vidence of
negligence. A barrel could not roll out of a warehouse without some negligence, and to say that a
plaintiff who is injured by it must call witnesses from the warehouse to prove negligence se ems to me
preposterous. * * * The present case upon the e vidence comes to this, a man is passing in front of the
premises of a dealer in flour, and there falls down upon him a barrel of flour. I think it apparent that
the barrel was in the custody of the defendant who occupied the premises, and who is responsible for
the acts of his servants who had the control of it; and in my opinion the fact of its falling is prima facie
evidence of negligence, and the plaintiff who was injured by it is not bound to show that it could not
fall without negligence, but if there are any facts inconsistent with negligence it is for the defendant
to prove them.
Note 1. Why did the plaintiff need help in this case? Why not allow the plaintiff’s case to fail? What
policy considerations drive the doctrine, in your view?
Note 2. One common fact pattern in RIL cases is objects falling from the sky onto plaintiffs’ heads.
And yes, it’s tort law: there

are

inde ed whole classes of fact patterns like

this. In fact, a non-

trivial number of them seem to involve chairs being flung out of hotel windows. (See Larson v. St.
Francis Hotel, 83 Cal.App.2d 210 (1948) (res ipsa loquitur not applicable in action against hotel for
injuries suffered by pedestrian when she was struck by a “heavy, overstuffed armchair” thrown from
a window to the side walk; hotel lacked exclusive control of its furniture and the accident was not
one that would ordinarily not happen without negligence). The case is often taught along with the
historical background: “The accident out of which this action arose was apparently the result of the
effervescence and ebullition of San Franciscans in their exuberance of joy on V-J Day, August 14, 1945.”
These end-of-war celebrations might have played a role in the court’s determination since it might
have be en impossible to control the partying that ensued. “Although there were a number of persons
in the imme diate vicinity, no one appe ars to have se en from whence the chair came nor to have se en
it before it was within a few feet of plaintiff’s head, nor was there any identification of the chair as
belonging to the hotel. However, it is a reasonable inference that the chair came from some portion
of the hotel.” Larson, at 513 (1948). More recently, see https://news.yahoo.com/woman-sues-76ersowners-property-000841467.html?guccounter=1Woman Sues 76ers Owner’s Property Company

Negligence Per Se and Res Ipsa Loquitur | 355

Ybarra v. Spangard, Supreme Court of California (1944)
(25 Cal.2d 486)
On October 28, 1939, plaintiff consulted defendant Dr. Tilley, who diagnosed his ailment as
appendicitis, and made

arrangements for an appendectomy to be performed by defendant Dr.

Spangard at a hospital owned and managed by defendant Dr. Swift. Plaintiff entered the hospital,
was given a hypodermic injection, slept, and later was awakened by Doctors Tilley and Spangard and
wheeled into the operating room by a nurse whom he be lie ved to be defendant Gisler, an employee
of Dr. Swift. Defendant Dr. Reser, the anesthetist, also an employee of Dr. Swift, adjusted plaintiff for
*488 the operation, pulling his body to the he ad of the operating table and, according to plaintiff’s
testimony, laying him back against two hard objects at the top of his shoulders, about an inch below
his neck. Dr. Reser then administered the anesthetic and plaintiff lost consciousness. When he awoke
early the following morning he was in his hospital room attended by defendant Thompson, the spe cial
nurse, and another nurse who was not made a defendant.
Plaintiff testified that prior to the operation he had ne ver had any pain in, or injury to, his right arm
or shoulder, but that when he awakened he felt a sharp pain about half way between the neck and
the point of the right shoulder. He complained to the nurse, and then to Dr. Tilley, who gave him
diathermy treatments while he remained in the hospital. The pain did not cease, but spread down
to the lower part of his arm, and after his release from the hospital the condition grew worse. He
was unable to rotate or lift his arm, and developed paralysis and atrophy of the muscles around the
shoulder. He received further treatments from Dr. Tilley until March, 1940, and then returned to work,
wearing his arm in a splint on the advice of Dr. Spangard.
Plaintiff also consulted Dr. Wilfred Sterling Clark, who had X-ray pictures taken which showed an area
of diminished sensation below the shoulder and atrophy and wasting away of the muscles around the
shoulder. In the opinion of Dr. Clark, plaintiff’s condition was due to trauma or injury by pressure or
strain, applied between his right shoulder and neck.
Plaintiff was also examined by Dr. Fernando Garduno, who expressed the opinion that plaintiff’s injury
was a paralysis of traumatic origin, not arising from pathological causes, and not systemic, and that
the injury resulted in atrophy, loss of use and restriction of motion of the right arm and shoulder.
Plaintiff’s theory is that the foregoing evidence presents a proper case for the application of the
doctrine

of res ipsa loquitur, and that the

inference

of negligence arising therefrom makes the

granting of a nonsuit improper. Defendants’ [***] main defense may be briefly stated in two
propositions: (1) that where there are se veral defendants, and there is a division of responsibility in the
use of an instrumentality causing the injury, and the injury might have resulted from the separate act
of either one of two or more pe rsons, the rule of res ipsa loquitur cannot be invoked against any one
of them; and (2) that where there are se veral instrumentalities, and no showing is made as to which
caused the injury or as to the particular defendant in control of it, the doctrine cannot apply. We are
satisfied, however, that these objections are not well taken in the circumstances of this case.
The doctrine of res ipsa loquitur has three conditions: “(1) the accident must be of a kind which
356 | Negligence Per Se and Res Ipsa Loquitur

ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency
or instrumentality within the e xclusive control of the defendant; (3) it must not have be en due to
any voluntary action or contribution on the part of the plaintiff.” [c] is applied in a wide variety of
situations, including cases of medical or dental treatment and hospital care. [cc]
There is, however, some uncertainty as to the e xtent to which res ipsa loquitur may be invoked
in cases of injury from medical treatment. This is in part due to the tendency, in some de cisions,
to lay undue e mphasis on the limitations of the doctrine, and to give too little attention to its
basic underlying purpose. The result has been that a simple, understandable rule of circumstantial
evidence, with a sound background of common sense and human experience, has occasionally been
transformed into a rigid legal formula, which *490 arbitrarily precludes its application in many
cases where it is most important that it should be applie d. If the doctrine is to continue to serve
a useful purpose, we should not forget that “the particular force and justice of the rule, regarded
as a presumption throwing upon the party charged the duty of producing evidence, consists in the
circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically
accessible to him but inaccessible to the injured person.” [cc] Maki v. Murray Hospital, 91 Mont. 251 [7
P.2d 228, 231].) In the last-name d case, where an unconscious patient in a hospital received injuries
from a fall, the court declared that without the doctrine the maxim that for every wrong there is
a remedy would be rendered nugatory, “by denying one, patently entitled to damages, satisfaction
merely because he is ignorant of facts peculiarly within the knowledge of the party who should, in all
justice, pay them.”
The present case is of a type which comes within the reason and spirit of the doctrine more fully
perhaps than any other. The passenger sitting awake in a railroad car at the time of a collision, the
pedestrian walking along the street and struck by a falling object or the debris of an explosion, are
surely not more entitled to an explanation than the unconscious patient on the operating table.
Viewed from this aspect, it is difficult to see how the doctrine can, with any justification, be so
restricted in its statement as to become inapplicable to a patient who submits himself to the care
and custody of doctors and nurses, is rendered unconscious, and receives some injury from
instrumentalities used in his treatment. Without the aid of the doctrine a patient who received
permanent injuries of a serious character, obviously the result of someone’s negligence, would be
entirely unable to recover unless the doctors and nurses in attendance voluntarily chose to disclose
the identity of the negligent person and the facts establishing liability. [c] If this were the state of
the law of negligence, the courts, to avoid gross injustice, would be forced to invoke the principle s of
absolute liability, irrespective of negligence, in actions by persons suffering injuries *491 during the
course of treatment under anesthesia. But we think this juncture has not yet been reached, and that
the doctrine of res ipsa loquitur is properly applicable to the case before us.
The condition that the injury must not have be e n due to the plaintiff’s voluntary action is of course
fully satisfied under the evidence produced here in; and the same is true of the condition that the
accident must be one which ordinarily does not occur unless someone was negligent. We have here no
problem of negligence in treatment, but of distinct injury to a healthy part of the body not the subje ct
of treatment, nor within the area covered by the operation. The de cisions in this state make it clear

Negligence Per Se and Res Ipsa Loquitur | 357

that such circumstances raise the inference of negligence, and call upon the defendant to explain the
unusual result.[c]
The

argument of defendants is simply that plaintiff has not shown an injury caused by an

instrumentality under a defendant’s control, because

he

has not shown which of the

se veral

instrumentalities that he came in contact with while in the hospital caused the injury; and he has
not shown that any one defendant or his servants had exclusive

control over any particular

instrumentality. Defendants assert that some of them were not the e mployees of other defendants,
that some did not stand in any permanent relationship from which liability in tort would follow,
and that in view of the nature of the injury, the number of defendants and the different functions
performed by each, they could not all be liable for the wrong, if any.
We have no doubt that in a modern hospital a patient is quite likely to come under the care of a
number of persons in different types of contractual and other relationships with each other. For
example, in the present case it appears that Doctors Smith, Spangard and Tilley were physicians
or surgeons commonly placed in the legal category of independent contractors; and Dr. Reser, the
anesthetist, and defendant Thompson, the spe cial nurse, were employees of Dr. Swift and not of the
other doctors. But we do not believe that either the number or relationship of the defendants alone
determines whether the doctrine of res ipsa loquitur applies. Every defendant in whose custody the
plaintiff was placed for any period was bound to exercise ordinary care to se e that no unnecessary
harm came to him and e ach would be liable for *492 failure in this regard. Any defendant who
negligently injured him, and any defendant charged with his care who so neglected him as to allow
injury to occur, would be liable. The defendant employers would be liable for the neglect of their
employees; and the doctor in charge of the operation would be liable for the negligence of those who
became his temporary servants for the purpose of assisting in the operation.
In this connection, it should be note d that while the assisting physicians and nurses may be employed
by the hospital, or engaged by the patient, they normally become the te mporary servants or agents of
the surgeon in charge while the ope ration is in progress, and liability may be impose d upon him for
their negligent acts under the doctrine of respondeat superior. Thus a surgeon has been held liable for
the negligence of an assisting nurse who le aves a sponge or other object inside a patient, and the fact
that the duty of seeing that such mistakes do not occur is delegated to others does not absolve the
doctor from responsibility for their negligence. [cc]
It may appear at the trial that, consistent with the principles outlined above, one or more defendants
will be found liable and others absolved, but this should not preclude the application of the rule
of res ipsa loquitur. The control, at one time or anothe r, of one or more of the various agencies
or instrumentalities which might have harme d the plaintiff was in the hands of every defendant
or of his employees or temporary servants. This, we think, places upon them the burden of initial
explanation. Plaintiff was rendered unconscious for the purpose of undergoing surgical treatment by
the defendants; it is manifestly unreasonable for them to insist that he identify any one of them as the
person who did the alleged negligent act.
The other aspect of the

case which defendants so strongly emphasize

is that plaintiff has not

identified the instrumentality any more than he has the particular guilty defendant. Here, again,
358 | Negligence Per Se and Res Ipsa Loquitur

there is a misconception which, if carried to the e xtreme for which defendants contend, would
unreasonably limit the application of the res ipsa loquitur rule. It should be enough that the plaintiff
can show an injury resulting *493 from an external force applie d while he lay unconscious in the
hospital; this is as clear a case of identification of the instrumentality as the plaintiff may ever be able
to make.
An examination of the recent cases, particularly in this state, discloses that the test of actual exclusive
control of an instrumentality has not been strictly followed, but exceptions have be en recognized
where the purpose of the doctrine of res ipsa loquitur would otherwise be de feated. Thus, the test has
become one of right of control rather than actual control. See Metx v. Southern Pac. Co., 51 Cal.App.2d
260, 268). In the bursting bottle cases where the bottler has delivered the instrumentality to a retailer
and thus has given up actual control, he will ne vertheless be subject to the doctrine where it is shown
that no change in the condition of the bottle occurred after it left the bottler’s possession, and it can
accordingly be said that he was in constructive control. (Escola v. Coca Cola Bottling Co., 24 Cal.2d 453).
Moreover, this court departed from the single instrumentality theory in the colliding vehicle cases,
where two defendants were involved, each in control of a separate vehicle. [cc] Finally, it has been
suggested that the hospital cases may properly be considered exceptional, and that the doctrine of
res ipsa loquitur “should apply with equal force in cases wherein medical and nursing staffs take the
place of machinery and may, through carelessness or lack of skill, inflict, or permit the infliction of,
injury upon a patient who is thereafter in no position to say how he received his injuries.” (Maki v.
Murray Hospital, 91 Mont. 251; see, also, Whetstine v. Moravec, 228 Iowa 352, where the court refers to
the “instrumentalities” as including “the unconscious body of the plaintiff.”)
In the face of these examples of liberalization of the tests for res ipsa loquitur, there can be no
justification for the rejection of the doctrine in the instant case. As pointed out above, if we accept
the contention of defendants herein, there will rarely be any compensation for patients injured while
unconscious. A hospital today conducts a highly integrated system of activities, with many persons
contributing their efforts. There may be, e.g., preparation for surgery by nurses *494 and internes who
are employees of the hospital; administering of an anesthetic by a doctor who may be an employee
of the hospital, an employee of the operating surgeon, or an independent contractor; performance
of an operation by a surgeon and assistants who may be his employees, employees of the hospital,
or independent contractors; and post surgical care by the surgeon, a hospital physician, and nurses.
The number of those in whose care the patient is placed is not a good reason for denying him all
reasonable opportunity to recover for negligent harm. It is rather a good reason for re-examination of
the statement of legal theories which supposedly compel such a shocking result.
We do not at this time undertake to state the e xtent to which the reasoning of this case may be applie d
to other situations in which the doctrine of res ipsa loquitur is invoked. We merely hold that where a
plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those
defendants who had any control over his body or the instrumentalities which might have caused the
injuries may properly be called upon to meet the inference of negligence by giving an explanation of
their conduct.
The judgment is reversed.

Negligence Per Se and Res Ipsa Loquitur | 359

Note 1. The court expresses concern that “a patient who received permanent injuries of a serious
character, obviously the result of someone’s negligence, would be entirely unable to recover unless
the doctors and nurses in attendance voluntarily chose to disclose the ide ntity of the negligent person
and the facts establishing liability”? If parties can be compelled to testify under oath at trial, why
would the court be worried?
Note 2. How far should the rule of Ybarra v. Spangard extend, in your view? Does it seem equally fair
to apply it in different kinds of contexts or does it gain greater legitimacy in the context of medical
care?
Note 3. How important is the “instrumentality” to the operation of RIL? If it is unknown, can RIL be
deployed nonetheless? If it is known, is RIL truly necessary?
Note 4. What is the significance of the court’s reference to the operations of a “modern hospital”?

360 | Negligence Per Se and Res Ipsa Loquitur

19. Negligence: Causation
Causation in Fact versus Proximate Cause. There are two distinct inquiries to satisfy the causation
element for negligence. The first, “cause in fact,” poses a factual causation (did this thing cause that
injury) and the se cond, “proximate cause,” poses a policy question (given that this thing did cause that
injury, should the law limit or find liability in this case?) The first question is descriptive; the second
question is normative. Proximate cause functions somewhat duty in that both can operate as liabilitylimiting principles except that duty is a question of law determined by the judge and often used
as a gatekeeping mechanism; proximate cause is a question of fact decided by the jury and usually
requiring development of a fuller factual record. Both causation and proximate cause are questions
of fact determined by the jury. One might reasonably ask why cause in fact would be a jury question
given that it can sometimes involve intensely complicated fact patterns. The plaintiff may have to
describe complex manufacturing processes or be able to trace harm back to e xposure to chemicals,
for example, thus requiring the jury to ascertain the e xistence of some sort of careless mistake and
the likelihood that it caused the plaintiff’s injury. One might also reasonably ask why proximate cause
would be a jury question given that it requires a clear policy determination and judges seem likelier
to be versed in making policy determinations; we will return to this question below when we discuss
proximate cause below. This introductory discussion deliberately defers the greater complexities
associated with causation, such as when there are multiple sufficient causes or when causes may
combine to create concurrent consequences. The initial focus here is on the most traditional and
narrowest understanding of causation in fact.
Causation in fact is often described using a counterfactual inquiry that begins with the defendant’s
breach of conduct, whatever it constituted. Was that breach the “sine qua non,” Latin for the thing
“without which, there would be no” (harm)? That is, if we subtracted the defendant’s unreasonable
conduct from the facts of the case and the harm would not have happened, then causation in fact is
met. If the breach of due care, when removed, makes no difference to the plaintiff’s injuries, causation
in fact is typically not met. In some cases a different test may be required because of multiple
tortfeasors or causes. But this initial test of “but-for causation” is the primary means of satisfying the
first prong of the causation element.

Questions or Areas of Focus for the Readings:
• Causation in fact is factual question for the jury. As you read cases of varying kind and
complexity, do they seem applicable amenable to jury decision making?
• If certain kinds of harm make causation harder, more expensive, or impossible to prove, what
mechanisms or outcomes seem appropriate to adopt?
• Causation in fact is distinguished from proximate cause in that the former inquiry is “factual”
and the latter is normative, based on policy considerations as you will learn in a subsequent set
of readings. However, the distinction between them suggests that causation in fact possesses
Negligence: Causation | 361

fewer policy issues. Consider whether the causation element seems distinguishable from tort
law’s more explicitly policy-driven questions.

Garrison v. Deschutes Cty., Supreme Court of Oregon (2002)
(334 Or. 264) (Facts excerpted from trial and appellate opinions)
[***] “Gary Garrison was severely injured in a fall at the Fryrear transfer station, which is
owned and operated by Deschutes County. The transfer station was designed and built using
‘Z-wall construction’, which consists of a concrete upper slab with a 14.5-foot retaining wall
that drops to a concrete lower slab. The design allows persons using the transfer station to
back their vehicles onto the upper slab and dump their garbage into semi-truck trailers that
have be en placed on the lower slab. There is a se ven-inch railroad tie at the e dge of the upper
slab that serves as a barrier to warn drivers not to back their vehicles any further. At the time
of Garrison’s fall, there were no other barriers or fences on the upper slab, and there were no
signs warning users of the danger of falling from the upper to the lower one.
On the day that Garrison was injured, he and his wife had driven to the transfer station in
their pickup with a load of refuse. Both had been to the transfer station before and, as at
those e arlier times, Garrison backed the pickup up to the railroad tie barrier and lowered the
tailgate. When the tailgate was lowered, it protruded out over the edge of the upper slab. Both
Garrison and his wife were aware of the distance of the drop from the uppe r to the lower slab
and had discussed the importance of being careful so as not to fall. Garrison stood in the back
of the pickup and threw the refuse over the edge and into the trailer below. When he was
finished, he grabbed a lumber rail on *268 the back of the pickup and attempted to swing out
onto the pavement of the upper slab. In doing so, he fell to the pavement of the lower slab,
suffering severe injuries to his face, head, arms and chest.” 162 Or. App. at 162-63.
Plaintiffs’ amended complaint alleged that the county was negligent “[i]n failing to maintain a premises
which is reasonably safe from dangers which were known or, in the e xercise of reasonable care, should
have be en known to defendant by placing fences, barriers, or other protective de vices next to the wall
to prevent individuals from falling,” and “[i]n failing to protect invitees from unreasonably dangerous
conditions on the premises which were known to the defendant or, in the e xercise of reasonable care,
should have be en known to the defendant by posting signs or other warning devices warning of the
immediate drop off.” [***]
[P]laintiffs contended that the county had a duty to warn of any known dangerous condition on its
land and had failed to do so. [***]
The trial court [***] rejected plaintiffs ‘failure-to-warn claim, based on what the court termed a “lack
of causation.” The court observed that the danger was open and obvious and, in light of plaintiffs’
deposition testimony that they were well aware of the risk, the failure to warn did not expose them to
any greater risk of harm than would have be en present had they been warned. Accordingly, the court
362 | Negligence: Causation

concluded that there was no ge nuine issue of fact or evidence in the record from which a reasonable
juror could have found that there was a causal link of any kind between the failure to warn and the
accident that befell Garrison [***] [T]he Court of Appeals agreed that the danger was an obvious one,
that plaintiffs were fully aware of the danger, and, consequently, that the absence of a warning did not
expose plaintiffs to any greater risk of harm than if they had been warned.
Plaintiffs’ first and third specifications of negligence, concerning the county’s allegedly negligent
1

design of the transfer station, invoke the general common-law responsibility of all persons to avoid
conduct that creates a specific *272 risk of injury to others, as well as the special duties that a
possessor of land owes to business invitees. In similar cases involving private

landowners and

occupiers, this court typically begins by examining the claims to de termine whether the property
owner’s alleged conduct was unreasonable

in the

circumstances and created a foreseeable,

unreasonable risk of harm to the plaintiff. [c] A private landowner or occupier of land in a position
similar to the county’s would be required to take care to protect patrons on the premises from
injuries resulting from known, dangerous conditions on the premises or, at least, to warn them of the
danger. Woolston v. Wells, 297 Or. 548, 557-58 (1984). [***]
Plaintiffs argue

that Woolston stands for the

proposition that e
ven obvious hazards must be

considered within a scheme of comparative fault. The court there stated:
“Each party is he ld to the same standard of care with respect to common law negligence.
Negligence is conduct falling below the standard established for the protection of others,
or oneself, against unreasonable risk of harm. The standard of care is me asured by what
a reasonable person of ordinary prudence would, or would not, do in the same or similar
circumstances.” * * *
In general, it is the duty of the possessor of land to make the premises reasonably safe for
the invitee’s visit. The possessor must exercise the standard of care above stated to discover
conditions of the

premises that create

an unreasonable

risk of harm to the invitee. The

possessor must exercise that standard of care either to eliminate the condition creating that
risk or to warn any foreseeable invitee of the risk so as to e nable the invitee to avoid the
harm. The invitee is required to exercise that same standard of care in avoiding harm from a
condition of the premises of which he knows, or, in the e xercise of that standard of care, of
which he should know. *279
Instructions to the jury should be framed in terms of that standard of care. The jury will
thereby be enabled to determine whether any given party is at fault and if both are at fault
to compare that fault as the statute commands. In determining and comparing fault, the jury
must necessarily consider the obviousness of danger and the ease or difficulty with which

1. As noted, plaintiffs’ first specification does not allege negligence in the design of the refuse transfer station. Instead, the
specification charges negligence in “failing to maintain” a facility with barriers to protect patrons from falling over the
edge of the platform. We agree with the county, however, that the gravamen of that allegation is that the county’s
alleged failure to design the platform in a way that included protective barriers (other than the railroad tie that
prevented vehicles form backing up too far) made the platform unreasonably dangerous.
Negligence: Causation | 363

harm to the plaintiff from that danger could be avoided by either party.” 297 Or. at 557-58,
(citation omitted).
Plaintiffs contend that the Court of Appeals’ holding is inconsistent with the foregoing directive. They
assert that the Court of Appeals effectively held, as a matter of law, that there is no “causal link” when
the invitee confronts a known or obvious danger. [***]
Plaintiffs misunderstand the Court of Appeals’ holding. The court of appeals concluded that, on the
undisputed evidence in this case, there was no causal link between the county’s failure to warn and
the injuries that befell plaintiffs. That conclusion is well supported by the e vidence that plaintiffs
were fully aware of the danger presented by the drop-off and the lack of a barrier at the e dge of the
platform.
In the present case, the evidence on summary judgment establishes that the county’s failure to warn
did not expose plaintiffs to any greater risk of harm than if they had been warned. Plaintiffs testified
at length at their depositions that they had used the transfer station before, that they knew of and
always had been concerned about the drop-off and the lack of a protective barrier at the e dge of the
platform, and that they had discussed the importance of being careful not to fall. Given that testimony,
no reasonable juror could find that a warning would have made a difference. The Court of Appeals was
correct in so holding.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
Note 1. This case also featured two additional important issues: first, the question of the government’s
qualified immunity from suit here (to which Module 4 returns, using this same case), and second, the
question of whether the transfer station was negligently designed. Can you see the significance of
those que stions looming in the background, in addition to this more straightforward doctrinal issue
of causation?
Note 2. What was the act or acts that constituted a potential breach of duty here? Why did this not
matter? Did the court’s reasoning rest on the plaintiff’s conduct or the defendant’s (or both)?
Note 3. If the plaintiff had been clearly negligent in his conduct, how might the analysis need to shift?
When “but-for causation” fails because of multiple sources of negligent conduct, many courts apply
the substantial factor test in which they ask whether the unreasonable conduct was a substantial
factor in the ultimate harm. This test has been critiqued because of its malleability—substantial, like
“reasonable” is a standard that lacks a fixed meaning—but it can be useful when the causal nexus is
complicated.

Challenges for Causation Analysis
It is not uncommon in accidents caused by allegedly tortious conduct to find that multiple factors
played a role in causing the harm. In some instances as you will see in the cases in this section, it can
be proven that either one or another factor (or party) caused the harm but may remain difficult for
364 | Negligence: Causation

the plaintiff to determine which of the two alternate possible tortfeasors was the actual tortfeasor.
Such a scenario invites the application of alternate liability, as in Summers v. Tice. However, even
more commonly, there are more than two parties or factors potentially to blame. If the factors must
have combined to cause the harm, then under concurrent liability it may be that all are blame worthy
whether or not they are all reachable through a lawsuit. (Sometimes, one party is immune or judgment
proof or unavailable for some other reason.) Joint and several liability may also apply in some cases.
Under joint and several liability, any of the tortfeasors may be individually liable for the amount
they alone caused or for the amount of harm caused by the whole group, either because the actors
were acting in concert (on some sort of outing or joint venture perhaps) or because the y caused
harm that is effectively indivisible. These are problems of liability—who caused the harm—but also
problems of allocation—who should pay for the harm regardless of who actually caused it. In some rare
instances, there are numerous separate entities causing wrongdoing and sometimes it is not clear
which tortfeasor caused the spe cific harm suffered by a particular plaintiff. In concert liability fails
because the e ntities are not connected; joint liability fails for the same reason. Alternate liability would
also fail because there are more than two. In response to a case of widespread harm in the form of
birth defects caused by a drug ingested by pregnant women, the California Supreme Court applied a
new doctrine, market share liability, which allows a plaintiff who suffers from some defective product
to pursue a manufacturer of the product even if it’s unclear whether that manufacturer or another one
caused their harm. There are particular limits as different courts have adopte d the doctrine and it is
extremely rare for courts to apply it for reasons you will learn in Smith v. Cutter Biological, in which
the court declined to adopt either alternate liability or joint liability when the hemophiliac recipient
of a blood transfusion contracted AIDS from the procedure, but found that the plaintiff could recover
under market share liability.

Alternate Liability
Summers v. Tice Supreme Court of California, in Bank [sic] (1948)
(33 Cal.2d 80)
Each of the two defendants appeals from a judgment against them in an action for personal injuries.
Pursuant to stipulation the

appe als have

be e
n consolidated. Plaintiff’s action was against both

defendants for an injury to his right eye and face as the result of being struck by bird shot discharged
from a shotgun. The case was tried by the court without a jury and the court found that on November
20, 1945, plaintiff and the

two defendants were

hunting quail on the open range. Each of the

defendants was armed with a 12 gauge shotgun loade d with shells containing 7 1/2 size shot. Prior to
going hunting plaintiff discussed the hunting procedure with defendants, indicating that they were
to exercise care when shooting and to ‘keep in line.’ In the course of hunting plaintiff proceeded up
a hill, thus placing the hunters at the points of a triangle. The view of defendants with reference to
plaintiff was unobstructed and they knew his location. Defendant Tice flushed a quail which rose in
Negligence: Causation | 365

flight to a ten foot elevation and flew between plaintiff and defendants. Both defendants shot at the
quail, shooting in plaintiff’s direction. At that time defendants were 75 yards from plaintiff. One shot
struck plaintiff in his eye and another in his upper lip. Finally it was found by the court that as *83
the direct result of the shooting by defendants the shots struck plaintiff as above mentioned and that
defendants were negligent in so shooting and plaintiff was not contributorily negligent.
First, on the subje ct of negligence, defendant Simonson contends that the e vidence is insufficient to
sustain the finding on that score, but he does not point out wherein it is lacking. There is e vidence
that both defendants, at about the same time or one imme diately after the other, shot at a quail and
in so doing shot toward plaintiff who was uphill from them, and that they knew his location. That is
sufficient from which the trial court could conclude that they acted with respect to plaintiff other
than as persons of ordinary prudence. The issue was one of fact for the trial court. [c]
Defendant Tice

states in his opening brief, ‘we

have

de cided not to argue

the

insufficiency of

negligence on the part of defendant Tice.’ It is true he states in his answer to plaintiff’s petition for a
hearing in this court that he did not concede this point but he does not argue it. Nothing more ne ed
be said on the subject.
Defendant Simonson urges that plaintiff was guilty of contributory negligence and assume d the risk as
a matter of law. He cites no authority for the proposition that by going on a hunting party the various
hunte rs assume the risk of negligence on the part of their companions. Such a tenet is not reasonable.
It is true that plaintiff suggested that they all ‘stay in line,’ presumably abreast, while hunting, and
he went uphill at somewhat of a right angle to the hunting line, but he also cautioned that they use
care, and defendants knew plaintiff’s position. We hold, therefore, that the trial court was justified in
finding that he did not assume the risk or act other than as a person of ordinary prudence under the
circumstances. [***] None of the cases cited by Simonson are in point.
The problem presented in this case is whe ther the judgment against both defendants may stand. It
is argued by defendants that they are not joint tortfeasors, and thus jointly and severally liable, as
they were not acting in concert, and that there is not sufficient evidence to show which defendant
was guilty of the negligence which caused the injuries the shooting by Tice or that by Simonson. Tice
argues that there is *84 evidence to show that the shot which struck plaintiff came from Simonson’s
gun because of admissions allegedly made by him to third persons and no evidence that they came
from his gun. Further in connection with the latter contention, the court failed to find on plaintiff’s
allegation in his complaint that he did not know which one was at fault did not find which defendant
was guilty of the negligence which caused the injuries to plaintiff.
Considering the last argument first, we believe it is clear that the court sufficiently found on the issue
that defendants were jointly liable and that thus the negligence of both was the cause of the injury or
to that legal effect. It found that both defendants were negligent and ‘That as a direct and proximate
result of the shots fired by defendants, and each of them, a birdshot pellet was caused to and did
lodge in plaintiff’s right eye and that another birdshot pellet was caused to and did lodge in plaintiff’s
upper lip.’ In so doing the court evidently did not give credence to the admissions of Simonson to third
persons that he fired the shots, which it was justified in doing. It thus determined that the negligence
of both defendants was the legal cause of the injury or that both were responsible. Implicit in such
366 | Negligence: Causation

finding is the assumption that the court was unable to ascertain whether the shots were from the gun
of one defendant or the othe r or one shot from each of the m. The one shot that entered plaintiff’s eye
was the major factor in assessing damages and that shot could not have come from the gun of both
defendants. It was from one or the other only.
It has been held that where a group of persons are on a hunting party, or otherwise engaged in the use
of firearms, and two of them are negligent in firing in the direction of a third person who is injured
thereby, both of those so firing are liable for the injury suffered by the third person, although the
negligence of only one of them could have caused the injury. …These cases speak of the action of
defendants as being in concert as the ground *85 of decision, yet it would seem they are straining
that concept and the more reasonable basis appe ars in Oliver v. Miles, supra. There two persons
were hunting together. Both shot at some partridges and in so doing shot across the highway injuring
plaintiff who was travelling on it. The court stated they were acting in concert and thus both were
liable. The court then stated (110 So. 668): ‘We think that * * * each is liable for the resulting injury
to the boy, although no one can say definitely who actually shot him. To hold othe rwise would be to
exonerate both from liability, although each was negligent, and the injury resulted from such negligence.’
(Emphasis added.) 110 So. p. 668.
It is said in the Restatement: ‘For harm resulting to a third person from the tortious conduct of
another, a pe rson is liable if he * * * (b) knows that the other’s conduct constitutes a breach of
duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c)
gives substantial assistance to the othe r in accomplishing a tortious result and his own conduct,
separately considered, constitutes a breach of duty to the third person.’ (Rest., Torts, sec. 876(b)(c).)
Under subsection (b) the e xample is given: ‘A and B are members of a hunting party. Each of them in
the presence of the other shoots across a public road at an animal this being negligent as to persons
on the road. A hits the animal. B’s bullet strikes C, a traveler on the road. A is liable to C.’ (Rest., Torts,
Sec. 876(b), Com., Illus. 3.) An illustration given under subsection (c) is the same as above e xcept the
factor of both defendants shooting is missing and joint liability is not imposed. It is further said that:
‘If two forces are actively operating, one be cause of the actor’s negligence, the other not because of
any misconduct on his part, and each of itself sufficient to bring about harm to another, the actor’s
negligence may be held by the jury to be a substantial factor in bringing it about.’ (Rest., Torts, sec.
432.)
Dean Wigmore has this to say: ‘When two or more persons by their acts are possibly the sole cause
of a harm, or when two or more acts of the same person are possibly the sole cause, and the plaintiff
has introduced evidence that the one of the two pe rsons, or the one of the same pe rson’s two acts, is
culpable, then the defendant has the burden of proving that the other person, or his other act, was the
sole cause of the harm. (b) * * * The real reason for the rule that each joint tortfeasor is responsible
for the whole damage is the practical unfairness of denying the injured person redress simply because
he cannot prove how *86 much damage e ach did, when it is certain that between them they did
all; let them be the ones to apportion it among themselves. Since, then, the difficulty of proof is the
reason, the rule should apply whenever the harm has plural causes, and not merely when they acted
in conscious concert. * * * ’ (Wigmore, Select Cases on the Law of Torts, sec. 153.) Similarly Professor
Carpenter has said: ‘(Suppose) the case where A and B independently shoot at C and but one bulle t
Negligence: Causation | 367

touches C’s body. In such case, such proof as is ordinarily required that either A or B shot C, of course
fails. It is suggested that there should be a relaxation of the proof required of the plaintiff * * * where
the injury occurs as the result of one where more than one independent force is operating, and it is
impossible to de termine that the force se t in operation by defendant did not in fact constitute a cause
of the damage, and where it may have caused the damage, but the plaintiff is unable to establish that
it was a cause.’ (20 Cal.L. Rev. 406.)
When we consider the relative position of the parties and the results that would flow if plaintiff was
required to pin the injury on one of the defendants only, a requirement that the burden of proof on
that subject be shifted to defendants becomes manifest. They are both wrongdoers both negligent
toward plaintiff. They brought about a situation where the ne gligence of one of them injured the
plaintiff, hence it should rest with them each to absolve himse lf if he can. The injured party has been
placed by defendants in the unfair position of pointing to which defendant caused the harm. If one
can escape the othe r may also and plaintiff is remediless. Ordinarily defendants are in a far be tter
position to offer evidence to de te rmine which one caused the injury. This reasoning has recently
found favor in this Court. In a quite analogous situation this Court held that a patient injured while
unconscious on an operating table in a hospital could hold all or any of the persons who had any
connection with the operation even though he could not select the particular acts by the particular
person which led to his disability. Ybarra v. Spangard, 25 Cal.2d 486. There the Court was considering
whether the patient could avail himself of res ipsa loquitur, rather than where the burden of proof
lay, yet the effect of the de cision is that plaintiff has made out a case whe n he has produced evidence
which gives rise to an inference of negligence which was the proximate cause of the injury. It is up to
*87 defendants to explain the cause of the injury. It was there said: ‘If the doctrine is to continue to
serve a useful purpose, we should not forget that ‘the particular force and justice of the rule, regarded
as a presumption throwing upon the party charged the duty of producing evidence, consists in the
circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically
accessible to him but inaccessible to the injured person.’’ 25 Cal.2d at page 490. Similarly in the instant
case plaintiff is not able to establish which of defendants caused his injury. [***]
Cases are cited for the proposition that where two or more tortfeasors acting independently of each
other cause an injury to plaintiff, they are not joint tortfeasors and plaintiff must establish the portion
of the damage caused by each, even though it is impossible to prove the portion of the injury caused
by each. [cc] In view of the foregoing discussion it is apparent that defendants in cases like the present
one may be treated as liable on the same basis as joint tortfeasors, and hence the last cited cases are
distinguishable inasmuch as they involve independent tortfeasors.
In addition to that, however, it should be pointed out that the same reasons of policy and justice
shift the burden to each of defendants to absolve himse lf if he can relieving the wronged person of
the duty of apportioning the injury to a particular defendant, apply here where we are concerned
with whether plaintiff is required to supply evidence for the apportionment of damages. If defendants
are independent tortfeasors and thus each liable for the damage caused by him alone, and, at least,
where the matter of apportionment is incapable of proof, the innocent wronged party should not
be deprived of his right to redress. The wrongdoers should be left to work out between themselves
any apportionment. [c] Some of the cited cases refer to the difficulty of apportioning the burden of
368 | Negligence: Causation

damages between the independent tortfeasors, and say that where factually a correct division cannot
be made, the trier of fact may make it the best it can, which would be more or less a guess, stressing
the factor that the wrongdoers are not a position to complain of uncertainty. [c]
It is urged that plaintiff now has changed the the ory of his case in claiming a concert of action; that
he did not ple ad or prove such concert. From what has been said it is clear that there has be en no
change in the ory. The joint liability, as well as the lack of knowledge as to which defendant was liable,
was pleaded and the proof developed the case under either theory. We have se en that for the reasons
of policy discussed herein, the case is base d upon the legal proposition that, under the circumstances
here presented, each defendant is liable for the whole damage whe ther they are de emed to be acting
in concert or independently.
The judgment is affirmed.
Note 1. Why does the court not discuss whether the parties breached their duty of due care?
Note 2. Summers v. Tice laid down a rule known now as “alternative liability” to cure the problem
created when two defendants are found to have breached their duty, but it is unknown which of
them caused the plaintiff’s harm. Do you follow the court’s discussion of in concert liability? And joint
liability? Alternative liability differs from “in concert” liability. Can you identify how it does so? Does
alternative liability rule se em fair to you? Why or why not? Does it seem efficient, whether or not it
seems fair?
Note 3. The court mentions the problem of “more than one independent force is operating,” which may
make it difficult to establish cause and quotes approvingly an article stating that in such cases “there
should be a relaxation of the proof required of the plaintiff.” What does it mean, precisely, to “relax”
the proof required? Did Ybarra v. Spangard, supra “relax” the proof for the plaintiff? If so, was it in a
similar fashion as in Summers? If not, how would you characterize the application of RIL in Ybarra?
Note 4. If the facts of Summers changed to include multiple hunters, would this change your analysis?
Note 5. Multiple Sufficient Acts / Overdetermined Causation. In rare instances, more than one act
or factor could independently cause a plaintiff’s injuries. The paradigmatic example is fire. Imagine
two defendants separately and negligently cause fires to start on either side of the plaintiff’s home
and the home is de stroyed. Such a scenario would, under the but-for causation test, produce an unfair
result: “But for Defendant 1’s negligent conduct, would the plaintiff’s harm still have occurred?” The
answer must be yes, since Defendant 2’s conduct would also have resulted in destroying the home.
In some cases, forensic analysis or a timeline can provide clues as to which party was more at fault,
but in cases of indivisible harm that is occasionally impossible. It would be unfair to allow both parties
to escape liability on the grounds that they each could point to the other as also being liable. This is
different from Summers v. Tice in which one or the othe r but not both were liable. Hence a rule e volved
to treat both their actions as a cause.
The Restatement (Third) of Torts: Phys. & Emot. Harm § 27 (2010) provides: “If multiple acts occur,
each of which under § 26 alone would have be en a factual cause of the physical harm at the same time
in the absence of the other act(s), each act is regarded as a factual cause of the harm.”
Negligence: Causation | 369

Be sure to distinguish a scenario featuring successive tortfeasors from a multiple sufficient causes
scenario. Imagine Defendant 1’s tortious conduct causes a collision that kills a plaintiff, if a second
negligent ambulance

drive
r comes, correctly confirms the

plaintiff is dead and then does some

additional minor damage to the plaintiff’s body in transporting it to a morgue. The ambulance driver
might be liable for the additional minor damage to the corpse under a wrongful death statute. But they
are a successive tortfeasor if so, not a cause of the plaintiff’s death; that liability falls to Defendant 1.

Negligence: Causation (Issues of Proof)
Zuchowicz v. United States, Court of Appeals for the Second Circuit
(1998)
d 381)
[***] This suit under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671–2680, was originally filed
by Patricia Zuchowicz, who claimed to have de veloped primary pulmonary hypertension, a fatal lung
condition, as a result of the defendant’s negligence in prescribing an overdose of the drug Danocrine.
Following Mrs. Zuchowicz’s death in 1991, her husband, Steven, continued the case on behalf of his
wife’s estate, claiming that the defendant was responsible for her death. After a bench trial, the district
court awarded the plaintiff $1,034,236.02 in damages.
The case statement recited above goes to the heart of the law of torts. A plaintiff claims to have
developed a fatal condition as a result of a defendant’s negligence in prescribing an excessive amount
of a drug—a tragic injury allegedly caused by defendant’s wrong. There is no doubt in the case before
us either as to the injury or as to the defendant’s wrong; both are conceded. The only issue is
causation. Did the action for which the defendant is responsible cause, in a legal sense, the harm
which the plaintiff suffered?—a question easily put and often very hard to answer. There is, moreover,
no older requirement in this area of law than the ne ed to show such a link between the defendant’s
actions and the plaintiff’s loss. It long precedes the obligation to show that the defendant was at
2

fault. Along with the showing of injury, *384 causation constituted an essential part of what the
3

plaintiff had to demonstrate for the early common law action in trespass to lie.

2. In England the requirement of fault in cases of direct injury to plaintiffs by defendants is generally dated to Baron
Bramwell’s opinion in Holmes v. Mather, 10 Exch. 261 (1875) [c]. In many of the states of the United States the
requirement was imposed earlier. The opinion most frequently cited is that of Chief Justice Lemuel Shaw in Brown v.
Kendall, 60 Mass. (6 Cush.) 292 (1850) [c].
3. The requirement of causation was a well-recognized and essential element of the plaintiff's case in chief in 17th century
trespass actions such as Weaver v. Ward, Hobart 134, 80 Eng. Rep. 28 (K.B.1617) [c] and Gibbons v. Pepper, 1 Ray. 38, 91
Eng. Rep. 922 (K.B.1695) [c]. The action in trespass, and especially trespass vi et armis (along with the later action of
trespass on the case), is generally regarded as the ancestor of the modern personal injury suit.
370 | Negligence: Causation

Over the centuries the courts have struggled to give me aning to this requirement—in the simplest
of situations, who hit whom, [fn] and in the most complex ones, which polluter’s emissions, if any,
4

hurt which plaintiff. It is the question that we must se ek to answer today in the context of modern
medicine and a very rare disease.
II. Background
The facts, as determined by the district court, are as follows. On February 18, 1989, Mrs. Zuchowicz
filled a prescription for the drug Danocrine at the Naval Hospital pharmacy in Groton, Connecticut.
The prescription erroneously instructed her to take 1600 milligrams of Danocrine per day, or twice the
maximum recommended dosage. The defendant has stipulated that its doctors and/or pharmacists
were negligent and violated the prevailing standard of medical care by prescribing this wrong dosage.
[***] In October 1989, she was diagnosed with primary pulmonary hypertension (“PPH”), a rare and
fatal disease in which increased pressure in an individual’s pulmonary artery causes severe strain on
the right side of the he art. At the time she was diagnosed with the dise ase, the median life e xpectancy
for PPH sufferers was 2.5 years. [***] PPH is very rare. A National Institute of Health registry recorded
only 197 cases of PPH from the mid–1980s until 1992. It occurs predominantly in young women.
Exogenous agents known to be capable of causing PPH include birth control pills, some appe tite
suppressants, chemotherapy drugs, rapeseed oil, and L–Tryptophan. [***]
Danocrine

has be e
n e
xtensively studied and prescribed since

the

late

1960s for endometriosis.

According to the testimony of plaintiff’s expert Dr. W. Paul D’Mowski, who personally performed much
of the initial research on the drug, Danocrine is safe and effective when administered properly. Based
on studies by Dr. D’Mowski and others, Danocrine was approved by the Food and Drug Administration
(“FDA”) for use in dosages not to exceed 800 mg/day. Mrs. Zuchowicz was accidentally given a
prescription instructing her to take twice this amount—1600 mg/day. According to Dr. D’Mowski no
formal studies of the effects of Danocrine at such high doses have be en performed, and very, very few
women have received doses this high in any setting.
The rarity of PPH, combined with the fact that so few human beings have e ver received such a high
dose of Danocrine, obviously impacted on the manne r in which the plaintiff could prove causation.
The number of persons who received this type of overdose was simply too small for the plaintiff to
be able to provide epidemiological, or even anecdotal, evidence linking PPH to Danocrine overdoses.
The plaintiff (Mrs. Zuchowicz’s husband and executor), therefore, based his case primarily on the
testimony of two expert witnesses, Dr. Richard Matthay, a physician and expert in pulmonary diseases,
and Dr. Randall Tackett, a professor of pharmacology who has published widely in the field of the
effects of drugs on vascular tissues. In rendering a judgment for the plaintiff, the district court
relied heavily on the e vidence submitted by these two experts. The defendant challenges both the
admissibility and the sufficiency of their testimony.
Dr. Richard Matthay is a full professor of medicine at Yale and Associate Director and Training
Director of Yale’s Pulmonary and Critical Care Se ction. He is a nationally recognized expert in the field

4. See Michie v. Great Lakes Steel Div., 495 F.2d 213 (6th Cir.1974).
Negligence: Causation | 371

of pulmonary medicine, with extensive e xperience in the area of drug-induced pulmonary diseases.
Dr. Matthay examined and treated Mrs. Zuchowicz. His examination included taking a detailed history
of the progression of her disease, her medical history, and the timing of her Danocrine overdose
and the onse t of her symptoms. Dr. Matthay testified that he was confident to a reasonable me dical
certainty that the Danocrine caused Mrs. Zuchowicz’s PPH. When pressed, he adde d that he believed
the overdose of Danocrine to have be en responsible for the dise ase. His conclusion was based on
the temporal relationship between the overdose and the start of the dise ase and the differential
etiology method of excluding other possible causes. While Dr. Matthay did not rule out all other
possible causes of pulmonary hypertension, he did exclude all the causes of secondary pulmonary
hypertension. On the basis of Mrs. Zuchowicz’s history, he also rule d out all previously known drugrelated causes of primary pulmonary hypertension.
Dr. Matthay further testified that the progression and timing of Mrs. Zuchowicz’s disease in relation
to her overdose supported a finding of drug-induced PPH. Dr. Matthay emphasized that, prior to
the overdose, Mrs. Zuchowicz was a healthy, active young woman with no history of cardiovascular
problems, and that, shortly after the overdose, she began experiencing symptoms of PPH such as
weight gain, swelling of hands and feet, fatigue, and shortness of breath. He described the similarities
between the course of Mrs. Zuchowicz’s illness and that of accepted cases of drug-induced PPH, and
he went on to discuss cases involving classes of drugs that are known to cause other pulmonary
diseases (mainly anti-cancer drugs). He note d that the onse t of these diseases, which are recognized
to be caused by the particular drugs, was very similar in timing *386 and course to the de velopment
of Mrs. Zuchowicz’s illness.
Dr. Randall Tackett is a tenured, full professor of pharmacology and former department chair from
the University of Georgia. He has publishe d widely in the field of the effects of drugs on vascular
tissues. Dr. Tackett testified that, to a reasonable degree of scientific certainty, he believed that the
overdose of Danocrine, more likely than not, caused PPH in the plaintiff by producing: 1) a decrease
in estrogen; 2) hyperinsulinemia, in which abnormally high levels of insulin circulate in the body; and
3) increases in free testosterone and progesterone. Dr. Tackett testified that these hormonal factors,
taken together, likely caused a dysfunction of the endothelium leading to PPH. Dr. Tackett relied
on a variety of published and unpublished studies that indicated that these hormones could cause
endothelial dysfunction and an imbalance of vasoconstrictor effects.
II. Discussion
A. Was the Admission of the Plaintiff’s Experts’ Testimony Manifestly Erroneous?
The defendant’s first argument is that the district court erred in admitting the testimony of Dr.
Tackett and Dr. Matthay. We review the district court’s decision to admit or exclude e xpert testimony
under a highly deferential abuse of discretion standard. [c] The Federal Rules of Evidence permit
opinion testimony by e
xperts when the witness is “qualified as an e
xpert by knowledge, skill,
experience, training, or education,” and “[i]f scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to de termine a fact in issue.” Fed.R.Evid. 702.
And though in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588–89, (1993), the Supreme

372 | Negligence: Causation

Court altered the traditional test for the admissibility of expert testimony, it did not change the
standard of appellate review of these decisions [c].

5

Under Daubert, trial judges are charged with ensuring that expert testimony “both rests on a reliable
foundation and is relevant to the task at hand.” 509 U.S. at 597. Thus, while Daubert and the Federal
Rules of Evidence “allow district courts to admit a somewhat broader range of scientific testimony
than would have be en admissible under Frye, they leave in place the ‘gatekeeper’ role of the trial
judge in screening such evidence.” [c] Indeed Daubert strengthens this role, for it requires that judges
make a “preliminary assessment of whether the reasoning or methodology underlying the testimony
is scientifically valid and of whether that reasoning or methodology properly can be applie d to the
facts in issue.” 509 U.S. at 592–93.
The factors identified by the Supreme Court as relevant to this inquiry are: (1) whether the theory can
be (and has been) tested according to the scientific method; (2) whether the theory or technique has
been subjected to peer review and publication; (3) in the case of a particular scientific technique, the
known or potential rate of error; and (4) whether the theory is generally accepted. See id. at 593–94.
The Court emphasized, however, that these factors were not an e xclusive or dispositive list of what
should be considered, and *387 that the trial court’s inquiry should be a “flexible one.” Id. at 594.
The question in this case is whe ther, in light of these factors, the district court’s decision to admit
the testimony of Dr. Matthay and Dr. Tackett was an abuse of discretion. [***] In the case before
us [***] the district court carefully undertook and fulfilled its role in making the e valuation required
by Daubert—a “preliminary assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid and of whether that reasoning or methodology properly can be applie d
to the facts in issue.” 509 U.S. at 592–93. Where, as in this case, the district court decides to admit
the testimony of well-credentialed experts relying on scientific methodology, we should and will be
reluctant to upset that decision as an abuse of discretion.
In the district court, the defendant made substantially the same arguments, regarding the validity of
the me thods used by Dr. Matthay and Dr. Tackett in reaching their conclusions, that it now raises on
appeal. The district court rejected these arguments, stating that the plaintiff’s experts “based their
opinions on methods reasonably relied on by experts in their particular fields.” We do not believe that
the district court’s decision in this regard was erroneous, let alone manifestly so.
B. Were the District Court’s Factual Findings with Respect to Causation Clearly Erroneous?
We review the district court’s factual findings for clear error. [c] The defendant argues that, even
assuming that the testimony of the plaintiff’s experts was admissible, the district court’s finding that
the Danocrine overdose more likely than not caused Mrs. Zuchowicz’s illness was clearly erroneous.
The defendant contends that, since Danocrine has ne ver been previously linked to PPH, the district

5. In Daubert, the Supreme Court rejected the traditional Frye rule (which had required that a scientific theory be
generally accepted by the scientific community to be admissible, see Frye v. United States, 293 F. 1013, 1014
(D.C.Cir.1923)), concluding that adherence to Frye’s “rigid ‘general acceptance’ requirement would be at odds with the
‘liberal thrust’ of the Federal Rules [of Evidence].” Daubert, 509 U.S. at 588 (citations omitted).
Negligence: Causation | 373

court’s conclusion that the drug caused Mrs. Zuchowicz’s illness was impermissible. For the reasons
stated below, we reject the defendant’s arguments.
The liability of the federal government under the Federal Tort Claims Act is determined according
to the law of the state in which the injury occurred. See 28 U.S.C. § 1346(b); [c] Connecticut law,
therefore, provides the applicable standards in this case. A plaintiff alleging medical malpractice in
Connecticut must first prove that the defendant negligently deviated from the customary standard of
care. [c] Since the de fendant has stipulated that its agents were negligent in prescribing an overdose
of the drug Danocrine, there is no question that this requirement is satisfied. In addition, “the plaintiff
must establish a causal relationship between the physician’s negligent actions or failure to act and
the resulting injury by showing that the action or omission constituted a substantial factor in *388
producing the injury.” [cc] This “substantial factor” causation requirement is the crux of the case
before us.
To meet the requirement that defendant’s behavior was a substantial factor in bringing about the
plaintiff’s injury, the plaintiff must generally show: (a) that the defendant’s negligent act or omission
6

was a but for cause of the injury, (b) that the negligence was causally linked to the harm, [fn] and (c)
that the defendant’s negligent act or omission was proximate to the resulting injury. *389 [fn] [***]
In the case before us, as we shall se e, neither the requirement of proximity nor that of causal link gives
rise to any problems (though the presence of a strong causal link will prove to be highly significant).
The case turns only on the difficulty of showing a but for cause. On whether, in other words, the
plaintiff has sufficiently demonstrated: (a) that defendant’s act in giving Mrs. Zuchowicz Danocrine

6. In non-negligence cases, the same requirement applies as to those non-faulty acts or activities (e.g., product defects,
extra-hazardous behavior) on whose existence the potential liability is grounded. In the last fifty years the strictness of
the requirement that the plaintiff show that without defendant’s act or omission the accident would not have occurred
has been mitigated in several types of cases. For instance, where two defendants are both clearly at fault, where the
plaintiff has little or no information as to which one's negligence was responsible for the injury, and especially where the
defendants may have better access to such information, the modern trend is to place the burden on the defendants to
disprove causation. See, e.g., Summers v. Tice, 33 Cal.2d 80 (1948); see also, Modave v. Long Island Jewish Med. Ctr., 501
F.2d 1065 (2d Cir. 1974) (Friendly, J.) (suggesting that, under New York law, a plaintiff may not need to prove which of two
culpable defendants actually caused the plaintiff’s injury even when the defendants were probably no more able to show
what happened than was the plaintiff). Another important example of this easing trend has been the acceptance of
statistical or market share evidence as a means of assigning at least part of a loss to various defendants whose conduct
justified liability but who could not be identified, more probably than not, as having been but for causes of it. See, e.g.,
Sindell v. Abbott Labs., 26 Cal.3d 588 (1980); Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487 (1989). Many courts long ago
abandoned the requirement of but for cause in situations where, since the negligence of any one of several defendants
was sufficient to cause the harm, the negligence of none was its necessary cause. See, e.g., Corey v. Havener, 182 Mass.
250 (1902). Indeed, some commentators attribute the acceptance of the “substantial factor” terminology, such as that
used in Connecticut, to the problems a strict but for test would cause in this latter type of case. See, e.g., W. Page Keeton
et al., Prosser and Keeton on the Law of Torts § 41, at 267–68 (5th ed.1984) [hereinafter Prosser]. While none of these
easings in the requirement of proof of but for cause applies directly to the case before us, it is not unlikely that
developments that are relevant to the instant case, see infra section II(B)(4), derived from a desire to achieve analogous
goals through tort law. See generally Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven,
Jr., 43 U. Chi. L. Rev. 69 (1975).
374 | Negligence: Causation

was the source of her illness and death, and (b) that it was not just the Danocrine, but its negligent
overdose that led to Mrs. Zuchowicz’s demise.
We hold that, on the basis of Dr. Matthay’s testimony alone, the finder of fact *390 could have
concluded—under Connecticut law—that Mrs. Zuchowicz’s PPH was, more likely than not, caused by
Danocrine. While it was not possible to eliminate all other possible causes of pulmonary hypertension,
the e vidence presented showed that the e xperts had not only excluded all causes of secondary
pulmonary hypertension, but had also ruled out all the previously known drug-related causes of PPH.
In addition, [***] that the progression and timing of Mrs. Zuchowicz’s illness in relationship to the
timing of her overdose supported a finding of drug-induced PPH to a reasonable me dical certainty.
In this respect, we note that in the case before us, unlike many toxic torts situations, there was not
a long latency period between the onset of symptoms and the patient’s exposure to the drug that
was alleged to have caused the illness. Rather, [***] the plaintiff began exhibiting symptoms typical
of drug-induced PPH shortly after she started taking the Danocrine. Under the circumstances, we
cannot say that the fact finder was clearly erroneous in determining that, more probably than not, the
Danocrine caused Mrs. Zuchowicz’s illness.
To say that Danocrine caused Mrs. Zuchowicz’s injuries is only half the story, however. In order for
the causation requirement to be me t, a trier of fact must be able to de termine, by a preponderance of
the e vidence, that the defendant’s negligence was responsible for the injury. In this case, defendant’s
negligence consisted in prescribing an overdose of Danocrine to Mrs. Zuchowicz. For liability to
exist, therefore, it is necessary that the fact finde r be able to conclude, more probably than not, that
the overdose was the cause of Mrs. Zuchowicz’s illness and ultimate de ath. The mere fact that the
exposure to Danocrine was likely responsible for the disease does not suffice.
The problem of linking defendant’s negligence to the harm that occurred is one that many courts have
addressed in the past. A car is speeding and an accident occurs. That the car was involved and was
a cause of the crash is readily shown. The accident, moreover, is of the sort that rules prohibiting
speeding are designed to prevent. But is this enough to support a finding of fact, in the individual
case, that speeding was, in fact, more probably than not, the cause of the accident? The same que stion
can be asked when a car that was driving in violation of a minimum speed requirement on a superhighway is rear-ended. Again, it is clear that the car and its driver were causes of the accident. And
the accident is of the sort that minimum speeding rules are designed to prevent. But can a fact finder
conclude, without more, that the driver’s negligence in driving too slowly led to the crash? To put
it more precisely—the defendant’s negligence was strongly causally linked to the accident, and the
defendant was undoubtedly a but for cause of the harm, but does this suffice to allow a fact finder to
say that the defendant’s negligence was a but for cause?
At one time, courts were reluctant to say in such circumstances that the wrong could be de emed to
be the cause. They emphasized the logical fallacy of post hoc, ergo propter hoc, and demanded some
direct evidence connecting the defendant’s wrongdoing to the harm. See, e.g., Wolf v. Kaufmann, 227
A.D. 281, 282 (1929) (denying recovery for death of plaintiff’s decedent, who was found unconscious at
foot of stairway which, in violation of a statute, was unlighted, because the plaintiff had offered no
proof of “any causal connection between the accident and the absence of light”).
Negligence: Causation | 375

All that has changed, however. And, as is so frequently the case in tort law, Chief Judge Cardozo in
New York and Chief Justice Traynor in California led the way. In various opinions, they stated that: if
(a) a negligent act was deemed wrongful because that act increased the chances that a particular type
of accident would occur, and (b) a mishap of that very sort did happen, this was enough to support a
finding by the trier of fact that the negligent behavior caused the harm. Where such a strong causal
link exists, it is up to the negligent party to bring in evidence denying but for cause and suggesting
*391 that in the actual case the wrongful conduct had not been a substantial factor.
Thus, in a case involving a nighttime collision between vehicles, one of which did not have the required
lights, Judge Cardozo stated that lights were mandated precisely to reduce the risk of such accidents
occurring and that this fact sufficed to show causation unless the negligent party demonstrated, for
example, that in the particular instance the presence of very bright street lights or of a full moon
rendered the lack of lights on the vehicle an unlikely cause. See Martin v. Herzog, 228 N.Y. 164 (1920);
see also Clark v. Gibbons, 66 Cal.2d 399 (1967) (Traynor, C.J., concurring in part and dissenting in part
on other grounds).
The

general acceptance

of this view is both signaled and explained by Prosser, which states

categorically:
And whether the defendant’s negligence consists of the violation of some statutory
safety regulation, or the breach of a plain common law duty of care, the court can
scarcely overlook the fact that the injury which has in fact occurred is precisely
the sort of thing that proper care on the part of the defendant would be intended
to prevent, and accordingly allow a certain liberality to the jury in drawing its
conclusion.
Prosser, supra note 6, § 41, at 270; see also Calabresi, supra note 6, at 71–73.
It is clear that Connecticut accepts this approach. [***] The case before us is a good example of
the above-mentioned principles in their classic form. The reason the FDA does not approve the
prescription of new drugs at above the dosages as to which extensive tests have be en performed
is because all drugs involve risks of untoward side effects in those who take them. Moreover, it is
often true that the higher the dosage the greater is the likelihood of such negative effects. At the
approved dosages, the benefits of the particular drug have presumably been deemed worth the risks
it entails. At greater than approved dosages, not only do the risks of tragic side effects (known and
unknown) increase, but there is no basis on the te sting that has been performed for supposing that the
drug’s benefits outweigh these increased risks. See generally 21 U.S.C. § 355(d) (indicating that the FDA
should refuse to approve a ne w drug unless the clinical tests show that the drug is safe and effective
for use unde r the conditions “prescribed, recommended, or suggested in the proposed labeling”). It
follows that when a negative side e ffect is demonstrated to be the result of a drug, and the drug was
wrongly prescribed in an unapproved and excessive dosage (i.e. a strong causal link has been shown),
the plaintiff who is injured has generally shown enough to permit the finder of fact to conclude that
the excessive dosage was a substantial factor in producing the harm.
In fact, plaintiff’s showing in the case before us, while relying on the above stated principles, is
376 | Negligence: Causation

stronger. For plaintiff introduced some direct evidence of causation as well. On the basis of his long
experience with drug-induced pulmonary diseases, one of plaintiff’s experts, Dr. Matthay, testified
that the timing of Mrs. Zuchowicz’s illness led him to conclude that the overdose (and not merely
Danocrine) was responsible for her catastrophic reaction.
Under the circumstances, we hold that defendant’s attack on the district court’s finding of causation
is meritless.
Note 1. Why was it a challenge for the plaintiff to establish causation? The court offers reasoning
that suggests the facts of this case made it especially difficult. When do you imagine it is not difficult
to prove causation in cases involving pharmaceutical drugs and other complex chemicals? What
level of certainty should be required in assessing causation in humans if no human trials have be en
conducted?
Note 2. What role does negligence per se play in this case?
Note 3. Daubert. Zuchowicz refers to Daubert, a case that reformed the standards by which scientific
testimony could be admitted in federal courts. Post-Daubert, testimony must be both relevant (under
the Federal Rules of Evidence) and reliable (using a new list of factors cited in the opinion above)
before it may be admissible. You will likely learn about Daubert (pronounced DOW (rhymes with cow)burt) when you study Evidence (in law school or for the bar e xam), and it’s an important case for tort
law’s breach, causation and damages inquiries. What you need to know for tort law is that it’s the
applicable standard for scientific and medical evidence in federal courts. Some state courts have also
adopted Daubert while others retained Frye, the older standard, which required that expert testimony
be subject to “generally accepted principles.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

Implications for Social Justice
Nieves v. 1845 7th Avenue Realty Associates, Supreme Court, New York
County (2000)
(184 Misc.2d 639)
Defendant City of New York moves, and co-defendants, 1845 7th Avenue Realty Associates, L.P., 1845
7th Avenue, Inc., Ari Parnes and Sharp Management Corp., cross-move, for an order compelling
plaintiffs to provide authorizations for the siblings’ complete school records, including colleges or
universities attended, courses taken and grades received, teacher reports and evaluations, and the
results of standardized tests, SAT and Advanced Placement tests, and psychological testing and
evaluations. Alternatively, defendants move and cross-move for an order precluding plaintiffs from
offering any evidence at trial regarding the academic performance of the infant plaintiff’s siblings.
Plaintiffs oppose the motion and cross-motion.

Negligence: Causation | 377

This is an action for damages for personal injuries sustained by the infant plaintiff, Jordan Nieves,
born on September 5, 1992, as the result of exposure to le ad-based paint while residing at 1851 7th
Avenue, Apt. 15, New York, New York. In May 1997, defendant City served a Demand for Discovery and
Inspection requesting, inter alia, the name, date of birth and current address of any siblings of the
infant plaintiff, and for each sibling, the “[n]ames and addresses of any and all schools, pre-schools
or day-care centers attended, and duly executed authorizations allowing those institutions to release
their records to the defendant(s).” Plaintiffs responded with the names and dates of birth of three
siblings (Kevin Michael Cleare, DOB 1/9/81; David Christopher Nieves, DOB 2/16/81; and Ishmael
Cleare, DOB 10/3/83), but objected to the demand for academic information as “seek[ing] irrelevant
and private information.” In August 1998, co-defendants served a Demand for Authorizations to obtain
the complete e ducational records of the infant plaintiff’s siblings, to which plaintiffs’ counsel objected.
In May 1999, plaintiffs served their Response for Expert Information, which identified Dr. Leon I.
Charash, M.D., a pediatric neurologist, as their expert witness, and annexed his April 6, 1999 report. In
that report, Dr. Charash concludes that Jordan Nieves
is behind academically and has been tested as having problems with processing
of information and problems with attention deficit disorder. These are all e vident
on today’s examination. Within reasonable certainty his lead poisoning is causally
responsible

for these problems and has *641 significantly impacted upon his

intelligence and his ability to achieve academically as well as his problems with
coordination and speech. Finally, of course, his attention deficit problems are
additionally viewed as being related to his plumbism [plumbism is the te chnical
term for lead poisoning]. Of special interest is the fact that he has three older
siblings, one of whom entered UCLA having finished high school a year earlier than
normal. Another brother has done well at school and is planning to go onto college
and to study law if possible. His sixteen year old brother is also doing well. There
is some indication that all three of these boys have be en variably placed in gifted
programs through their school careers.
In support of this motion to compel or preclude, defendants contend that they are entitled to
discovery regarding the siblings’ academic performance, because it bears directly on a significant
issue raised by plaintiffs. Defendants assert that plaintiffs now inte nd to use the very evidence the y
deemed irrelevant and refused to give discovery on two years ago, to support their own claim that
Jordan would have gone to college if he had not be en exposed to lead paint. According to counsel
for defendant City, when the parties appeared for a compliance conference before this Court on
June 4, 1999, “plaintiffs’ attorney admitted that plaintiffs would claim at trial that Jordan would have
attended college but for his lead poisoning, and intended to offer fact and expert evidence regarding
how Jordan’s siblings had done academically.” Defendants argue that if plaintiffs are permitted to offer
evidence as to the successful academic performance of Jordan’s brothers, defendants are entitled to
the brothers’ school records, so that they will be in a position to refute plaintiffs’ claim and to crossexamine Dr. Charash and any other witnesses testifying as to this issue. Alternatively, defendants
argue that if plaintiffs do not wish to provide such discovery, they should be precluded from offering
any evidence of the brothers’ academic performance.
378 | Negligence: Causation

In opposition to the motion, plaintiffs assert that the brothers’ school records are not material and
relevant to any issue in this action, and that defendants are entitled only to the general factual
observations of the infant plaintiff’s mother, who testified at her further deposition as to the spe cific
schools attended by the siblings and the dates of attendance. Plaintiffs assert that Dr. Charash did
not examine the siblings’ school records, and the statements in his report are base d on the history
provided by the infant plaintiff’s father, who made general observations of his children’s academic
performance. Alternatively, plaintiffs argue that if the motion to compel is granted, the records should
be examined by the Court in camera.
*642 [***] Defendants’ motion and cross-motion to compel disclosure or to preclude are denied
except to the limited extent indicated below. It is undisputed that two siblings, Kevin Cleare and David
Nieves, have both reached the age of majority, and, as such, only they, nonparties to this action, can
provide the authorizations sought by defendants. [***] As neither Kevin Cleare nor David Nieves was
served with the order to show cause or the notice of cross-motion, the Court lacks jurisdiction over
them for the purposes of the motion and cross-motion. In any event, even if Kevin Cleare and David
Nieves had been properly served, the motion and cross-motion to compel disclosure is hereby denied
with respect to the academic records of all three siblings, as defendants’ discovery demand is over
broad, and the relevance and materiality of the requested information to any claim or defense in the
action has not been established. [cc] See Andon v. 302–304 Mott Street Assocs., 94 N.Y.2d 740; Monica W.
v. Milevoi, 252 A.D.2d 260, 263 (1st Dept.1999); McGuane v. M.C.A. Inc., 182 A.D.2d 1081 (4th Dept.1992).
Generally, in the reported decisions on disclosure in le ad paint cases, defendants seek intelligence
quotient (I.Q.) testing, and medical, academic and employment records of parents and siblings, who
are usually non-partie s, to dispute the issue of causation, theorizing that the requested information
may lead to the discovery of admissible e vidence relevant to whether the infant plaintiff’s condition
is the result of a genetic disorder or some environmental factor other than lead. See e.g. [cc]; Wepy
v. Shen, 175 A.D.2d 124 (2nd Dept.1991); *643 Baldwin v. Franklin General Hospital, 151 A.D.2d 532 (2d
Dept.1989); Van Epps v. County of Albany, 184 Misc.2d 159 (Sup.Ct., Albany Co.); Espinal v. 570 W. 156th
Assocs, N.Y.L.J., December 31, 1998, p. 27, col. 2 (Sup.Ct., N.Y.Co.); Washington v. Bayley Seton Hospital,
N.Y.L.J., May 12, 1998, p. 25, col. 5 (Sup.Ct., N.Y.Co.); Anderson v. Seigel, 175 Misc.2d 609 (Sup.Ct., Kings
Co.), aff’d as modified, 255 A.D.2d 409 (2nd Dept.1998); Alan C. Eagle & Charlotte Biblow, Courts in
Lead Cases Allow Discovery of Siblings’ Academic & IQ Records, N.Y.L.J., April 12, 1999, p. 1, col. 1; Hope
Viner Sanborn, Blame It On the Bloodline, Discovery of Non–Parties’ Medical and Psychiatric Records
is Latest Defense Tactic in Disputing Causation, 85 A.B.A.J. 28 (Sept.1999); Jennifer Wriggins, Genetics,
IQ, Determinism, and Torts: The Example of Discovery in Lead Exposure Litigation, 77 B.U.L. Rev. 1025
(1997).
In the

de cisions reported to date, the First Department, Appellate

Division and the

Se cond

Department, Appellate Division rely on the identical legal principles in analyzing the issues on a caseby-case basis, but have split on the outcomes reached. The First Department so far has denied such
disclosure, Andon v. 302–304 Mott Street Assocs., 257 A.D.2d 37 (1st Dept. 1999), aff’d 94 N.Y.2d 740; [cc]
and the Second Department has consistently granted it [cc].
The one opinion by the Court of Appeals rendered recently in Andon v. 302–304 Mott Street Assocs,
Negligence: Causation | 379

supra, affirmed the First Department, Appellate Division’s denial of defendants’ motion to compel the
plaintiff-mother to submit to an IQ test. Rejecting defendants’ argument that the Appellate Division
had created a “blanket prohibition” against discovery of maternal IQ in all lead paint cases, the Court
of Appeals found that the Appellate Division had “evaluated defendants’ request in the context of this
case and in light of the e vidence presented to it. The Appellate Division concluded that the burden of
subjecting plaintiff-mother to an IQ test outweighed any relevance her IQ would bear on the issue of
causation. The Court noted that the mother’s mental condition is not in dispute and that IQ results,
while not confidential, are private. Under these circumstances, we are satisfied that the Appellate
Division did not abuse its discretion as a matter of law.” [fn]
*644 Here, neither plaintiffs nor defendants have

made

a sufficient showing that the

siblings’

academic records are relevant or material to the question of whether the infant plaintiff’s cognitive
deficits and emotional behavior problems are causally related to his ingestion of lead paint. The
discovery dispute over the siblings’ academic records resurfaced when plaintiffs exchanged the report
of their expert neurologist, Dr. Charash. This report includes limited second-hand information about
the siblings’ successful academic performance, which Dr. Charash attempts to use as further support
for his conclusion that the infant plaintiff’s impairments were caused by exposure to le ad paint.
However, any claim by plaintiffs, that there is a correlation between the infant plaintiff’s impairments
and his siblings’ academic performance, is speculative, at best. [cc] [T]he parties have faile d to produce
an expert affidavit “to demonstrate that the e xtent to which the adverse effects of lead exposure
contributed to the mental and physical condition of the infant plaintiffs cannot be ascertained by
reference to objective clinical criteria and expert testimony.” Supra, at 263, 685 N.Y.S.2d 231.
Defendants likewise fail to show how the siblings’ academic information pertains to any disability or
developmental impairment experienced by the infant plaintiff, as the record contains no indication
that the siblings share any of the infant plaintiff’s impairments. [***] To the contrary, Ms. Cleare
testified that the siblings Kevin Cleare and Ishmael Cleare were ne ver evaluated for any special
education, speech or learning problems, and that they were both in gifted programs at various times.
Thus, under the circumstances presented, neither proof nor case law provides a basis for concluding
that the siblings’ academic records are material and relevant to the issue of causation. However, if
at trial, plaintiffs intend to introduce e vidence that the siblings attended certain schools or certain
programs, plaintiffs shall provide defendants with documentary proof of *645 the siblings’ enrollment
at the schools, within 45 days of the date of this order. The court herein makes no determination as to
the admissibility of such evidence at trial, which shall be reserved for the trial court.
[Defendant’s motion and cross-motion denied.]
Note 1. What did the defendants’ strategy appear to be with respect to the siblings’ academic records
it sought? What alternative strategies might be available in light of this motion’s denial?
Note 2. Would it help the plaintiff on this issue to be able to bring the claim unde r strict liability rather
than negligence? Why or why not?
Note 3. Would you distinguish between a parent and a sibling’s records, with respect to an infant’s
exposure to a toxic environment? Is it possible that toxicity in an environment might manifest in ways
380 | Negligence: Causation

that affect both parent and infant, and should that be relevant for the question of causation in fact?
To what extent is genetic testing a proxy for other factors and what do you think, normatively, about
its utility and appropriateness in cases of long-term injury such as this one?
Note 4. Should courts conside ring the use of siblings’ or parents’ educational records to assess
causation take into account the way socioeconomic privilege and race have historically determined
(and limited) educational and professional opportunities? Are

structural problems like systemic

inequity in education beyond the scope of tort law?
Note 5. The court cites numerous cases and articles on the topic of lead paint litigation. In fact the
harms posed by lead point are substantial and widespread. Many homes built in the first half of the
twentieth century contain lead-based paint, whose use was banned starting in 1978. The le ad-based
paint may chip, flake, or be absorbed into groundwater and dirt and thus be ingested by children
in one or many forms. “Studies have linked high lead exposure to de creased fertility, spontaneous
abortions, miscarriages, and other pathologies. Studies dating back to 1929 have established
especially pernicious consequences of high lead exposure to children including …brain damage and
learning disabilities, hyperactivity, and impaired hearing. Such effects are long-term.” Donald E.
Lively, The Diminishing Relevance of Rights: Racial Disparities in the Distribution of Lead Exposure
Risks, 21 B.C. Envtl. Aff. L. Rev. 309, 314 (1994) (internal citations omitted).
The Center for Disease Control considers any reading blood-level higher than ten mg/dL, to require
intervention. The Se cretary of Health and Human Services has described lead poisoning as “the
number one environmental threat to the he alth of children in the United States.” Id. at 316. The
toxicity and ubiquity of lead-based paint present a significant public health problem. Yet its impact
lands disproportionately among people of color. “[S]ignificant disparities in blood-lead levels exist on
the basis of ethnicity. Recent studies have confirmed consistent and significant exposure variances
correlated to race. When race and income are factored together disparities are e ven more egregious.
An Agency for Toxic Substances and Disease Registry study disclosed that, among families with an
annual income under $6,000, the percentage of black children having blood-lead levels exceeding
fifteen mg/dL is sixty-eight percent, contrasted with a leve
l for white

childre
n of thirty-six

percent. The independent significance of race is further evidenced by results showing that 26.6
percent of all African-American children, as opposed to 7.1 percent of all white children, have bloodlead levels exceeding fifteen mg/dL.” Id. at 317.
White flight and other demographic changes in cities have contributed to this concentration of
higher-risk in lower-income communities. Whatever the other causes, the racial disparity in toxic
injury is clear. What is the proper role for tort law, if any, in systematically remedying the wrongs
caused by common use of lead-based paints? What is the proper role for the legislature, if any?

Negligence: Causation | 381

D.M. ex rel. Ray v. Philadelphia Housing Authority (2015)
(613 Fed.Appx. 187)
D.M., a minor (“Plaintiff”), by and through her mother, Ravonnia Ray, appeals *188 the dismissal of
her substantive due process claim against the Philadelphia Housing Authority (the “PHA”) for D.M.’s
7

exposure to le ad point that occurred while she and Ray lived in Section 8 housing. We will affirm. [***]
Sometime before June 1, 2006, the PHA entered into a Housing Assistance Payment (“HAP”) contract
with John Cassidy, the owner and landlord of an apartment building in Philadelphia, Pennsylvania (the
“Property”), pursuant to the Federal Housing Choice Voucher Program under Section 8 of the United
States Housing Act, 42 U.S.C. § 1437, et seq. (the “Se ction 8 Program”). Cassidy “operated, managed,
maintained, [and] controlled” the Property. App. 32A.
On June 1, 2006, Ray entered into a two-year lease agreement for the Property with Cassidy. The PHA
approved Ray’s lease for inclusion in the Se ction 8 Program and, in accordance with the HAP contract,
paid Cassidy $501 per month in subsidies on Ray’s behalf.

8

On June 1, 2008, Ray renewed her lease, which the PHA again approved for inclusion in the Se ction
8 Program. The le ase renewal included a “Lead–Based Paint Disclosure Addendum” that was binding
on Cassidy. In March 2009, the PHA inspected the Property and discovered several violations of the
Section 8 Program’s Housing Quality Standards (“HQS”), including uncovered electrical outlets, broken
windows, and inoperable range burne rs. The PHA re-inspected the Property three times in April
and May 2009, and reported that Cassidy failed to address the HQS violations. None of the PHA’s
inspection reports identified lead paint-related hazards in the Property.
On June 25, 2009, D.M. underwent a blood test that revealed “dangerously elevated levels of lead.” Ray
sent D.M.’s blood test results to the Philadelphia Department of Health (the “DOH”), which inspected
the Property and found lead-based paint on more than eighty surfaces. The DOH ordered Cassidy
to eliminate the le ad-based paint, but he faile d to do so. D.M. and Ray eventually moved out of the
Property.
Plaintiff filed a five-count Complaint against Cassidy and the PHA in connection with D.M.’s lead paint
exposure. The District Court granted the PHA’s motion to dismiss under Fed.R.Civ.P. 12(b)(6), holding
in pertinent part that Plaintiff’s 42 U.S.C. § 1983 state-created danger claim against the PHA failed to
allege that the PHA’s approval of the Property for inclusion in its Section 8 Program was a “fairly direct”
cause of D.M.’s injuries. Plaintiff appeals [The District Court dismissed all of Plaintiff’s claims against
the PHA, but Plaintiff only appeals its dismissal of her state-created danger claim (Count IV)].
Plaintiff alleges that the PHA violated her due process rights by “exercis[ing its] authority in a manner”

7. Although Ray is listed as an Appellant in the Opening Brief, it appears that she is involved in this case only to the extent
that D.M.’s claims are brought by and through Ray. We will therefore refer to the appealing party in the singular.
8. Under the Section 8 Program, tenants pay rent “based on their income and ability to pay. The PHA then makes ‘housing
assistance payments’ to private landlords” that equals “the difference between the [tenant’s] contribution and a ‘contract
rent’ agreed upon by the landlord and the PHA.” Truesdell v. Phila. Hous. Auth., 290 F.3d 159, 161 (3d Cir. 2002)
382 | Negligence: Causation

that made her “more vulnerable to danger” from lead-based paint in the Property. “[T]he Due Process
Clauses generally confer no affirmative right to governmental aid, even where such aid may be
necessary *190 to secure life, liberty, or property interests of which the government itself may not
deprive the individual.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196, 109 S.Ct.
998 (1989). A state actor, however, “may be he ld liable unde r the ‘state-created danger’ doctrine for
creating a danger to an individual in certain circumstances.” Henry v. City of Erie, 728 F.3d 275, 281 (3d
Cir.2013) [c]).
A state-created danger claim has four elements:
(1) the harm ultimately caused was foreseeable and fairly direct;
(2) a state actor acted with a degree of culpability that shocks the conscience;
(3) a relationship between the state and the plaintiff existed such that the plaintiff was a
foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected
to the potential harm brought about by the state’s actions, as opposed to a member of the
public in general; and
(4) a state actor affirmatively used his or her authority in a way that created a danger to the
citizen or that rendered the citizen more vulnerable to danger than had the state not acted at
all.
Id. at 282. “To fulfill the ‘fairly direct’ requirement of the state-created danger claim, the plaintiff must
plausibly allege that state officials’ actions precipitated or were the catalyst for the harm for which the
plaintiff brings suit.” [c] “Precipitate, in turn, means to cause to happen or come to a crisis suddenly,
unexpectedly, or too soon.” Id. (internal quotation marks omitted). Thus, for purposes of the fairly
direct requirement, it “is insufficient to plead that state officials’ actions took place some where along
the causal chain that ultimately led to the plaintiff’s harm.” Id. (dismissing § 1983 state-created danger
claim for the plaintiffs’ fire-related injuries incurred while living in Se ction 8 housing because the
“defendants’ approval and subsidization of the apartment did not lead ‘fairly directly’ to the fire that
claimed the [plaintiffs’] lives”).
Plaintiff failed to plausibly allege that the PHA precipitated, caused, or was the catalyst for her harm.
Plaintiff alleges that the PHA “failed to discover” the lead paint in its March 2009 annual inspection,
and “rendered plaintiff[ ] more vulnerable to danger than had [it] not acted at all” by: (1) including
the Property in the Se ction 8 program despite numerous HQS violations; (2) making repeated HAP
payments to Cassidy despite the HQS violations; and (3) “[r]equiring” that Plaintiff “remain” at the
Property despite the “life-threatening violations of HQS” and lead paint hazards. However, Plaintiff
does not allege that the PHA introduced lead paint to the Property or was responsible for its presence
9

there. See Henry, 728 F.3d at 285 (finding no “fairly direct” causation where the plaintiffs “did not
allege that [municipal] defendants caused the fire,” “increased the apartment’s susceptibility to fire,” or
“failed to install a smoke de tector and a fire escape”). Nor does Plaintiff allege that the PHA increased
the quantity of lead paint in the Property or “did anything to hinder [Cassidy] from bringing [the
Property] into compliance” with HQS. Id. at 285. While the PHA subsidized the Property and was

9. Plaintiff concedes that the lead paint was present when Ray and D.M. moved into the Property.
Negligence: Causation | 383

allegedly “aware of the dangers that [Plaintiff] faced …, it played no part in their creation, nor did it do
anything to *191 render [Plaintiff] any more vulnerable to them.” DeShaney, 489 U.S. at 201. In short,
Plaintiff’s allegations fail to show “that [the PHA] created the danger” Plaintiff faced while living in the
10

Property. Henry, 728 F.3d at 286.

For the foregoing reasons, we will affirm.
Note 1. How significant was the fact that the plaintiff signed a lease with a lead discloser addendum,
do you think? Have you signed such documents before? Do you read them thoroughly before signing?
Have you ever chosen not to go through with signing a document because of discovering a particular
term, clause, or disclosure? Regardless of the plaintiff’s awareness of the le ad, should it bar her infant
daughter’s right of recovery? Why or why not?
Note 2. The state-created danger doctrine provides a cause of action against a state official that
is analogous in several respects to negligence

claims against private

individuals. Reviewing the

4-pronged test set out above, do you see parallels to duty, breach, causation and damages? Do you see
how the plaintiff’s case could be said to have faile d due to lack of causation, or her inability to prove
it?
Note 3. Is the causation requirement fatally flawed in the context of chemical or toxic torts? At least
one scholar has called for its elimination. Margaret A. Berger, Eliminating General Causation: Notes
Towards A New Theory of Justice and Toxic Torts, 97 Colum. L. Rev. 2117, 2145 (1997) Berger points to
asbestos litigation as a paradigmatic example and observes that manufacturers knew about its risks
and harms long before the y were willing to disclose the m to the public. This failure to disseminate
information in a responsible manner had several negative consequences. It augmented the number
of people

who suffered from asbestos exposure
, contributed to burdening judicial dockets, and

ultimately made causation more challenging to establish as well. Id. at 2143. Berger argues that the
problem is structural; businesses are incentivized to behave in this way:
Even when a corporation is well-aware of the risk it is creating, it may gamble that the future
costs for compensation and litigation and administrative penalties, offset by insurance and
discounted by inflation, will be le ss than the current cost of adding safety measures, providing
information, or paying for more research. Moreover, once the corporation acknowledges the
foreseeability of a toxic tort problem, particularly if there are many potential plaintiffs, the
price of its stock may drop in anticipation of lawsuits with enormous transaction costs and
huge se ttlement potential. Such a result is, of course, extremely unpalatable, both because
corporate

managers’ chief obligation is to their current shareholders, and because

the

increasing use of stock options as a major component of corporate remuneration means that

10. Plaintiff’s attempts to distinguish Henry are unpersuasive. In Henry, the plaintiffs alleged that Erie, Pennsylvania’s
housing authority caused their injury by allowing them to reside in a location without smoke detectors or fire alarms.
728 F.3d at 285. In this case, Plaintiff alleges that the PHA wrongly permitted Ray and D.M. to reside in a location in
which lead paint was present. Henry rejected this as a basis for liability because the Erie housing authority's actions
were not the fairly direct cause of the injury. The cause of the Henry injury was the fire and the alleged cause of D.M.'s
injury was the lead paint placed there by the landlord. Thus, Henry is indistinguishable.
384 | Negligence: Causation

their own compensation may be tie d directly to stock performance. The conflict between
short-term and long-term consequences puts management into a bind. The uncertainty about
the future proof of causation and the time-lag before anything definitive will emerge tip the
balance in favor of resolutions that maximize short-term objectives. Id. at 2139-2140.
Berger proposes conditioning liability in negligence on failure to provide substantial information
relating to risk. Instead of the plaintiff’s needing to prove causation, defendants would benefit from
a kind of safe harbor: provided they proved that they had complied with a mandatorily established
standard of care, they would be insulated from liability for injuries caused by exposure to their
products. She proposes two additional defenses, “as a matter of fairness and as an inducement to
conduct future research.” The first would allow defendants to prove that certain adverse health
reactions could not plausible

arise

from exposure to their product; the

reduction of damage
s in cases in which defendants prove

se cond would allow a

that “a particular plaintiff’s injury is

attributable or partly attributable to another cause, such as smoking.” Id. at 2144-2145.
Does Berger’s idea strike the right balance, in your view? Do her additional defenses effectively create
a backdoor requirement of causation for certain plaintiffs, in the language referring to injury’s being
“attributable to another cause”? Referring to tort law’s various purposes, what arguments support
maintaining causation versus eliminating or modifying it?

Joint and Several Liability
Joint and several liability is a rule followed in many jurisdictions that allows a plaintiff whose harm was
caused by more than one tortfeasor to recover the full amount of their compensation from any single
one of the individuals or from them as a group. The benefit of the rule, from the plaintiff’s perspective,
is that if one of the tortfeasors is immune to liability, judgment proof, unidentified or otherwise
unavailable, the plaintiff can recover that party’s portion from other tortfeasors. Likewise, if there is
one party with deep pockets (or a relevant insurance policy), the plaintiff stands a better chance of
receiving the compensation tort law awards to them if the plaintiff can proceed directly against the
deep-pocketed party rather than seeking compensation from multiple parties. From the defendants’
perspective, joint and several liability can seem quite unfair be cause it doesn’t necessarily track the
amount of the tortfeasor’s fault. Further, one party may be be tter or worse able to pay a judgment
and yet still find they owe such a payment regardless of their lesser capacity to pay it. Despite its
name, “joint and several liability” is a rule of allocation as much as a rule of liability. In some cases, it is
used to find liability with respect to a tortfeasor whose involvement cannot be as cle arly established
as others also involved; in other cases, it is used to allocate or shift from one defendant to another
the obligation to compensate the plaintiff for the injuries caused by a group of defendants’ wrongful
conduct. Often, the party who satisfies the judgment will seek contributions or indemnification from
the other tortfeasors (or even indemnification.
Several liability means a plaintiff whose harm was caused by more than one tortfeasor can proceed
against an individual tortfeasor only for the

amount that tortfeasor personally owes under the
Negligence: Causation | 385

judgment; the plaintiff may not seek the amount of the full judgment against the group from a single
plaintiff in the way joint and several liability permits.
Jurisdictions have arrived at various different rules regarding joint and several liability; it is not
uncommon, even in states that retained joint and several liability, to have limited it in certain domains
(such as medical malpractice or products liability cases).

Smith v. Cutter Biological, Inc., Supreme Court of Hawai’i (1991)
(72 Haw. 416)
[By certified question from Smith v. Cutter Biological, Inc., 911 F.2d 374 (9th Cir. 1990)]
[***] Question 3. Would Hawaii allow recovery in this case when the identity of the actual tortfeasor
cannot be

proven? If Hawaii would allow recovery, what theory (i.e. burden-shifting, enterprise

liability, market share or other) would the Hawaii Supreme Court adopt?
[***] The instant problem is that the plaintiff cannot identify which particular defendant caused his
injury. Our consideration of the issues is limited to the facts as stated in this record. Procedurally, this
case reached the Ninth Circuit Court on a summary judgment motion. The order granting summary
judgment did not rule on duty and breach as to the manufacturers; summary judgment was granted
on the basis that plaintiff failed to prove causation. The other elements of negligence, i.e., duty, breach
and damages, are not at issue here. We note that at least two courts have de termined, in cases similar
to the instant action, that there was no breach of duty. Jones v. Miles Laboratories, Inc., 887 F.2d 1576
(11th Cir.1989); McKee v. Cutter Laboratories, Inc., 866 F.2d 219 (6th Cir.1989). However, those cases
11

are distinguishable. We do not render an opinion as to whether appellant here will overcome the
obstacles met by plaintiffs in those cases; the duty and breach issue here has not only not been
decided, it is not before this court on the certified questions. Therefore, we do not de al with the
viability of those questions.
*421 Our conclusions deal only with this case—as it comes to us. Therefore, on our reading of the

11. The first distinction is that jurisdictionally, those courts’ decisions are not controlling here. Second, in Jones, the
negligence was based on the failure of the defendant to use “high risk” questioning as to the specifics of whether the
donor was a homosexual. Jones, 887 F.2d at 1580. The decision was based solely on the fact that the donor, who was
clearly identified, would not and did not admit that he was a member of one of the “high risk” groups for AIDS. Id. at
1581. In McKee, the finding of no negligence was based on the fact that at the time of the decedent’s being diagnosed
with AIDS, in October 1983, industry custom did not require the processes developed later to inactivate the AIDS virus.
McKee, 866 F.2d at 224. A final distinction is that in both cases, the specific manufacturer was named. On the other
hand, at least one court has approved application of the market share theory of liability on facts similar to those herein.
Ray v. Cutter Laboratories, 754 F.Supp. 193 (M.D. Fla. 1991). Ray was also considered at the summary judgment stage, but
the federal court adopted the market share theory as that was the only multi-tortfeasor theory of liability then approved
by the state supreme court. Id. at 195.
386 | Negligence: Causation

record as it stands, the relevant statutes, and the relevant case law, [***] our answer to question three
is “yes,” using the alternative market share theory of recovery, as defined herein.

12

13

Appellant is a hemophiliac who has tested HIV-positive with the AIDS virus. He claims that his
exposure to the AIDS virus occurred in 1983 or 1984, through injections of the Antihemophilic Factor
Concentrate (Factor VIII or AHF). [fn] Factor *422 VIII, as more fully discussed in Part III, is a blood
protein which enables the blood to properly coagulate when a hemophiliac suffers a bleeding episode.
The original source of the Factor VIII is through blood donors.
The United States Tripler Army Medical Hospital (U.S.) was appellant’s dispensary for Factor VIII
during the period of time in which appellant claims to have be en infected. According to appellant,
appellee manufacturers [fn] furnished to the U.S., the Factor VIII which was used by appellant. Upon
appellant’s first being tested for HIV antibodies in 1986, the results were positive.
Appellant filed suit against the four appellee manufacturers of Factor VIII for negligence and strict
14

liability. Defendants moved for summary judgment. Despite acknowledging “that this is a case in
which it might be reasonable to apply the principles of market *423 share the ory of liability,” the
district court granted summary judgment in favor of appellees, holding that appellant failed to prove
specifically which manufacturer’s product caused his infection. Appellant took the case to the Ninth
Circuit, which certified the questions to this court. [***] *425 IV.
The reason this case is before this court is because the le gislature has not fully legislated in the field
of torts. When the occasion arises for which there is no spe cific rule to apply, “we are free to fashion
an appropriate rule of law.” Armstrong v. Cione, 69 Haw. 176, 738 P.2d 79 (1987). We must consider what
justification there is for deviating from the traditional proof in a negligence case, which, as this court
has previously said, includes the factor of causation. See Knodle v. Waikiki Gateway, 69 Haw. 376, 385
(1987).
Appellees take issue with applying theories which were de veloped, in a large part, for remedies in
the field of diethylstilbestrol (DES) drug litigation and the inherent problems associated with those
actions.[fn] Their strongest argument against using these theories *427 is the lack of comparison of

12. Defendants include not only the manufacturers—Armour Pharmaceutical Corporation, Cutter Biological, Inc., Alpha
Therapeutics Corporation, and Travenol Laboratories, Inc. (now Baxter Laboratories)—but also the United States of
America (U.S.). The allegations against the U.S. are based on negligence and failure to warn. Although designated as an
appellee, the U.S. has not filed an answering brief. We note that the claims against the U.S. are not directly pertinent to
the certified questions before this court.
13. AIDS is an infectious disease caused by a virus, as are herpes, smallpox, yellow fever, and hepatitis. R. Jarvis, M. Closen,
D. Hermann, A. Leonard, AIDS LAW in a Nutshell 1 (West Publishing 1990) (hereinafter AIDS Nutshell). The disease was
uniquely recognized in June and July, 1981. Id. at 5. There are several modes of infection: 1. sexual intercourse, 2. sharing
infected syringes, 3. receipt of human tissue, blood, etc., and 4. child birth or breast feeding. Id. at 7. Once infected, a
victim will not test positive for HIV during a “window” period, which lasts between six weeks and six months—although
some researchers say the window period may be several years. Id. at 14. Although testing positive, a person may
continue to be asymptomatic for seven to ten years. Id.
14. Appellant, at one point, attempted to convert this suit to a class action, but failed to follow through on the opportunity.
Our analysis of the theories of liability might differ, were this a class action.
Negligence: Causation | 387

DES to Factor VIII as a fungible product. DES was produced by more than 200 different companies,
some of which are defunct, but the identical formula was used universally in a highly regulated
industry. With Factor VIII, there are only a handful of manufacturers, and although the product is
fungible insofar as it can be use d interchangeably, it does not have the constant quality of DES. The
reason is obvious—the donor source of the plasma is not a constant. Therefore, Factor VIII is only
harmful if the donor was infected; DES is inherently harmful. As we se e that the lack of screening of
donors and failure to warn are the breaches alleged, appellee’s argument for not using DES theories is
not convincing. We find consideration of the the ories discussed in the DES cases to be helpful, as we
strive to find an equitable and fair solution to the case at bar.
Our initial reference is to the reasoning of the Supreme Court of California, in Sindell v. Abbott
Laboratories, 26 Cal.3d 588, cert. denied, 449 U.S. 912 (1980). We subscribe to the policy reasons
propounded in Sindell, and discussed infra, for by-passing the identification requirement.
In addition, we note that tort law is a continually expanding field. As discussed in the American Law
Institute Enterprise Responsibility for Personal Injuries—Reporter’s Study (1991) (ALI Study), the field
of torts has now expanded to include personal injury actions described in three tiers of actions. I
ALI Study 9. These are loosely defined as first, the traditional level which includes accidents where
an individual defendant causes harm to a stranger. The se cond level includes product defects and
medical mishaps which include high stakes cases with erratic jury *428 results. Finally, the third tier
includes “mass” torts where toxic exposure to many plaintiffs may, many years later, cause cancer or
other illness. Id. at 9–10. It is this final tier with which this case de als. It necessitates considering how
to fairly deal with the plight of plaintiffs unable to identify, for no fault of their own, the person or
entity who should bear the liability for their injury.
No longer can we apply traditional rules of negligence, such as those used in individual and low
level negligence to mass tort cases, especially here, where we are de aling with a pharmaceutical
industry that dispenses drugs on a wide scale that could cause massive injuries to the public, and
where fungibility makes the strict requirements difficult to meet. The problem calls for adopting new
rules of causation, for otherwise innocent plaintiffs would be left without a remedy. We concede that
there is a difference of opinion regarding the ne ed for this change. For instance, in regard to DES
cases, the Illinois Supreme Court refused to adopt the market share the ory of liability, in part because
“[a]cceptance of market share liability and the concomitant burden placed on the courts and the
parties will imprudently bog down the judiciary in an almost futile endeavor.” Smith v. Eli Lilly & Co., 137
Ill.2d 222, 253 (1990). In addition, that court criticized the fairness of results in apportioning damage
when reliable information on all manufacturers might not be available. Id. Part of that reasoning, of
course, is based on the fact that the potential number of defendants in DES cases extends into the
hundreds. Id. at 254, 148 Ill. Dec. at 36. The numbers here are not ne arly so large, and therefore, the
harshness of the result, that is, burdening the innocent plaintiff without a remedy, to us seems totally
unfair and out of step with current efforts to allow recovery when the proper case is brought.
The policies in Sindell and Hall convince us that it is appropriate to consider a negligence action
where the actual tortfeasor cannot be proven. Therefore, although inherent in the proof of *429

388 | Negligence: Causation

negligence is proof of causation, we believe that this state is ame nable to consideration of group
theories of liability.
[***] There are se veral theories which have e volved in the last se veral years. The genesis of these
theories comes from Sindell v. Abbott Laboratories, 26 Cal.3d 588 (1980). The the ories are generally
described as: alternative liability, concert of action, enterprise or industry-wide liability, and market
share liability. In the e volution of the DES cases, the market share the ory has undergone various
modifications, to suit the policies and needs of the particular courts.
A. Alternative Liability
This theory is epitomized in the well-known case of Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948). In
that case, two hunters negligently shot in the direction of the plaintiff; one of them injured him. Upon
deciding that both were wrongdoers and negligent to the plaintiff, the court felt that it was unfair
to leave an impossible burden of proof on the plaintiff, and shifted that burden to the defendants
to absolve themselve s. The rule of Summers v. Tice is included in the Restatement (Second) of Torts
(Restatement) as follows:
Where the conduct of two or more actors is tortious, and it is proved that harm
has been caused to the plaintiff by only one of them, but there is uncertainty as to
which one has caused it, the burden is upon each such actor to prove that he has
not caused the harm.
*430 Restatement § 433B (3) (1965). The comments in the Restatement also suggest that this theory
may appropriately be subject to modification at a later time. Id., comment h.
Two presumptions follow this theory. First, the

plaintiff must prove

that “all defendants acted

tortiously and that the harm resulted from the conduct of one of them.” Sindell, 163 Cal.Rptr. at 139 n.
16, citing Restatement § 433B, comment g. This has been interpreted to mean that the tortious actions
must occur simultaneously. Starling v. Seaboard Coast Line R.R., 533 F. Supp. 183, 191 (S.D.Ga.1982)
(court considering theories in asbestos related injury). However, another court, in applying the the ory
in a Factor VIII case, disagreed. Poole v. Alpha Therapeutic, 696 F. Supp. 351, 356 (N.D. Ill.1988).
Second, all responsible parties must be joined. Sindell, 163 Cal.Rptr. at 139. Typically, this theory is
useful in multiple car crash cases, cases of pollution by several defendants, and injury during medical
operations where the plaintiff is sedated. Agent Orange Litigation, 597 F. Supp. 740 (E.D.N.Y.1984).
Additionally, however, joint and several liability is inherent in the application of alternative liability.
We choose not to alte r the the ory to the point that it would be use ful on the facts here. Several
problems arise which lead us to this decision. First, we look at the various theories of negligence which
appellant suggested. One argument is that there was a duty to properly select and screen donors;
other arguments follow the same line of reasoning—that the manufacturers should have implemented
verified surrogate laboratory tests, or that they should have ceased using plasma from donor centers
where the population groups had significant numbers of AIDS incidents. It is obvious that each
manufacturer acted at various different times, so the simultaneous requirement of a strict application
of the the ory *431 fails. Also, although appellant has alleged that manufacturers are “most” of the
Negligence: Causation | 389

possible tortfeasors, and the manufacturers have not cle arly rebutted that argument, it is still subject
to factual proof and findings. Finally, we do not believe that joint and several liability is appropriate
under the circumstances of this case. Therefore, this theory cannot be applie d here, unless modified,
and we choose not to do so base d on these facts, as other theories, discussed infra, have already been
appropriately modified.
B. Concert of Action
This theory derives from the criminal law concept of aiding and abetting. Starling, 533 F. Supp. at 187.
See Restatement § 876. Concert of action is usually applied with a small number of defendants, a single
plaintiff, and a short time period between the tort and its discovery. The defendants’ joint plan is the
basis of the cause of action, and most often the plaintiff is able to identify which defendant actually
caused the injury. Abel v. Eli Lilly and Co., 418 Mich. 311, 338, cert. denied sub nom, E.R. Squibb & Sons,
10

Inc. v. Abel, 469 U.S. 833 (1984).

The court stated that the identification did not preclude use of the

theory. Id. According to the court, the only burden of plaintiffs to withstand a summary judgment
motion, for failure to state a cause of action, was to “allege that the defendants were jointly engaged
in tortious activity as a result of which the plaintiff was harmed.” Id. Inherent in this theory is the
application of joint and several liability. As the Michigan court also stated, “[i]f plaintiffs can establish
that all defendants acted tortiously pursuant to a common design, they will all be he ld liable for the
entire result.” Id. *432 Even if we thought this theory appropriate in a Factor VIII case, again, we do
not wish to burden defendants with joint and several liability. Therefore, we choose not to allow this
theory to be applied to this case.
C. Enterprise or Industry–Wide Liability
The essence of the enterprise theory is that there is joint control of the risk throughout a particular
industry. The the ory originated in the blasting caps case, Hall v. E.I. DuPont de Nemours & Co., Inc.,
345 F. Supp. 353 (E.D.N.Y.1972). The basis of the case was that there was an industry-wide standard
concerning safety; the safety planning was delegated to a central group; and there was cooperation in
the manufacture and design. Policy dictates that when all of those facts occur, the entire enterprise is
liable. Therefore, the industry-wide standard became the cause of the plaintiff’s injury.
The main premise against this theory is stated in one of the DES cases:
The underlying rationale in all of the de cisions rejecting enterprise liability is
that the law of torts does not include a theory of liability which would allow
an entire industry to be held strictly liable for an injury caused by a defective
product. Enterprise liability as described in Hall is predicated upon industry-wide
cooperation of a much greater degree than that alleged by the plaintiff.
Martin v. Abbott Laboratories, 102 Wash.2d 581, 600 (1984). That premise is directly disputable by
reading Hall, as the court states:
There is thus no support for defendants’ argument that to establish joint control
of risk, plaintiffs must demonstrate that the e xplosives industry was “rigidly *433
controlled” through the trade association with regard to blasting cap design, …
390 | Negligence: Causation

and that the obje ct of such control was some particularly reprehensible breach
of duty. The variety of business and property relationships in which joint control
of risk has been found demonstrates the flexibility of the doctrine. Liability is
not limited to particular formal modes of cooperation, nor to illegal or grossly
negligent activities.
Hall v. E.I. DuPont de Nemours, 345 F. Supp. at 374.
However, another court has aptly stated the plaintiff’s burden of proof with a showing:
(1) that the product was manufactured by one of a small number of defendants
in an industry; (2) the defendants had a joint capacity to reduce the risks of
the product; and (3) each of them failed to take steps to reduce the risk at a
substantially concurrent time by delegating their responsibility to an association.
Conley v. Boyle Drug Co., 477 So.2d 600, 604 (Fla.App.1985), rev’d on other grounds, 570 So.2d 275
(Fla.1990) (specifically approving the analysis of the lower court as to alternative, concert of action,
enterprise, and Sindell market share theories of liability).
Based on the steps as set forth in Conley, the enterprise theory appears to be some what persuasive
a method of approaching this case. We note that the ple adings do not raise the alle gation that the
defendants had the joint capacity to reduce the risk. Appellant does not even argue this the ory in his
opening brief; however, the facts alleged in the brief lend credibility to this type of argument. Were it
not that we are again faced with the inherent application of joint liability, and the fact in addition, that
we find one aspe ct of the Hall scenario convincingly distinguishable, we might endorse this theory in
answer to the certified question.
*434 First, we mention the distinguishable characteristic of Hall, which is convincingly pointed out
to us by appellees and the court in Sindell v. Abbott Laboratories, 26 Cal.3d 588 (1980). The court
there note d that “the drug industry is closely regulated by the Food and Drug Administration, … [t]o
a considerable degree, therefore, the standards followed by drug manufacturers are suggested or
compelled by the government.” Id., 163 Cal.Rptr. at 143. With the government in control of the parties’
actions, it is unfair to hold them liable for following the standards. Appellees’ arguments convince us
that such reasoning is appropriate here, too, to eliminate this theory on these facts.
We further digress to expound on our reluctance to adopt joint liability in the Factor VIII cases. First,
as we are writing a new chapter in tort law in the State of Hawaii, we endeavor to set principles which
we think would be adopte d by our legislature. We note that by statute, joint and several liability in
tort will be abolishe d to some e xtent as of October 1991. HRS § 663–10.9 (Supp.1990). As to what is still
allowed, damages are still limited by the doctrine of modified comparative negligence. HRS § 663–31
(1985). Therefore, we believe the le gislature has se en a need to balance the e quities in this evolving
field.
In addition, as noted by many of the opinions in DES cases, there is an inherent unfairness in holding
one or two parties responsible in full for the actions of tortfeasors who may escape liability for some
reason. It seems at least a fair trade-off, where the plaintiff cannot identify which party actually
Negligence: Causation | 391

caused his injuries, to at least allow the defendants to limit their share of liability to their relative
proportion of the market. Therefore, we move on to discuss, and endorse, market share liability, with
modifications.
D. Market Share Liability & Its Progeny
This theory has been most susceptible to variations and refinements, especially in DES litigation, but
also in line with the *435 law of the state in which it has been applied. It was first defined in Sindell, 26
Cal.3d 588 (1980). The policies there stated included: 1. the reasoning of Summers v. Tice, 33 Cal.2d 80
(1948), that between innocent plaintiffs and negligent defendants, the negligent party should be held
liable; 2. advances in science and the creation of fungible goods whose source cannot be traced; 3. the
financial ability of defendants to bear the costs; and 4. the fact that manufacturers are in the be tter
position to prevent defective products from reaching the consumer market. Sindell, 163 Cal.Rptr. at
144. We e xpand on those policies to acknowledge that defendants may bear the loss by passing that
cost of doing business on to consumers. In addition, we feel that equity and fairness calls for using the
market share approach. Another justification is that where many drugs can be le thal, and it is difficult
for the consumer to identify the source of the product, the burden should shift. The concept itself
meets the obje ctives of tort law, both by providing plaintiffs a remedy, but also by deterring defendants
from negligent acts.
After stating its policies, the Sindell court stated:
[W]e hold it to be reasonable in the present context to measure the likelihood
that any of the defendants supplied the product which allegedly injured plaintiff by
the percentage which the DES sold by each of them for the purpose of preventing
miscarriage be ars to the entire production of the drug sold by all for that purpose.
Id. at 145. Included in the definition was a requirement that a substantial percentage of the market
must be joine d as defendants, and that an exculpatory clause be include d. Id. We feel that this basic
theory, with modifications and distinctions to suit the policies of this state, discussed infra, provides
an appropriate modem for appellant’s case. The relevant considerations *436 are: 1. defining the
market, 2. identification and joint and several liability, and finally 3. exculpatory allowances.
1. Defining the Market
Criticisms of Sindell include the ne ed for a definition of “substantial share” of the market, in order
not to distort the share of liability. Martin v. Abbott Laboratories, 102 Wash.2d 581, 602 (1984). The
Martin court adopted a narrow definition of the market, that being the plaintiff’s particular geographic
market. Id. at 605. The justification is that the narrow market share purports to make a “particular
defendant’s potential liability … proportional to the probability that it caused plaintiff’s injury.” Id. This
policy was later reaffirmed by the same court, with acknowledgement that lacking evidence of the
specific market, then “other figures, … such as within the county, state, or even in the country may in
certain circumstances be introduced.” George v. Parke–Davis, 107 Wash.2d 584, 592 (1987). The Florida
Supreme Court, in Conley v. Boyle Drug Co., 570 So.2d 275 (Fla.1990), agreed with the Washington court
that the relevant market should be “as narrowly defined as the e vidence in a given case allows.” Id. at
392 | Negligence: Causation

284. The court found this manner of definition to be consistent with the Martin theory of allowing
a defendant to exculpate itself by showing no participation in that market. It does meet the goal of
market-share liability to impose liability only on those companies who could have manufactured the
injurious product.
Another court has specifically adopted the national market as the best option. Hymowitz v. Eli Lilly
and Co., 73 N.Y.2d 487, 511 (1989). Several premises supported this holding: 1. it was difficult to reliably
determine any market smaller than the national one, 2. it avoided the ne ed to establish separate *437
matrices as to market share, and 3. it avoided an unfair burden on litigants. Id. at 511. The national
market was intended to “apportion liability so as to correspond to the over-all culpability of each
defendant, measured by the amount of risk of injury each defendant created to the public-at-large.” Id.
at 512. This provides equitable relief for plaintiffs, and a rational distribution of responsibility among
defendants. It also avoids a windfall escape to the producer who happens to sell only to certain
distributors. The culpability, therefore, is for marketing the product.
As we are faced here with a minimal number of manufacturers of the product, we believe that
culpability for marketing the

product is a be
tter policy. Should the

issue

arise

unde r different

circumstances at some point, we may find it appropriate to narrow the definition. For this case,
however, we believe the national market is the more equitable consideration.
2. Identification and Joint and Several Liability
Courts differ on their requirements of an assertive effort on the part of plaintiffs to identify the
actual manufacturer of the spe cific product which caused the harm. We take another approach to
this concern. Whereas manufacturers here argue that appellant should have kept a log of which
manufacturer’s product he was using, we fail to se e how such failure affects the viability of appellant’s
suit in view of our adoption of the theory of market share liability.
Plaintiffs should use due diligence to join all manufacturers, but failure to do so is not a defense.
Failure to do so may affect the percentage of recovery, discussed infra. However, manufacturers are
permitted to implead other manufacturers. But, in this case, all manufacturers are joine d, so the issue
is not before us. However, we note in passing that the conditions of the Martin court, which would
allow plaintiffs to initiate suit against only one defendant, *438 and of Sindell, which would require
plaintiffs to join a “substantial” number of defendants, are immaterial as long as plaintiffs realize their
recovery will depend on joining as many manufacturers as they can; plaintiffs will endeavor to join all
manufacturers.
We have already discussed our feeling that this action should not be subje ct to joint liability. We simply
reiterate what other courts have said on this point, that “‘[t]he cornerstone of market share alternate
liability is that if a defendant can establish its actual market share, it will not be liable unde r any
circumstances for more than that percentage of the plaintiff’s total injuries.’ ” Conley, 570 So.2d at 285,
quoting George v. Parke–Davis, 107 Wash.2d at 595. Therefore, we advocate several liability.
We define the rules of distribution as to market share for this case as was done in Martin, that is:
The defendants that are unable to e xculpate themselves from potential liability are
Negligence: Causation | 393

designated members of the plaintiffs’ … market[ ]…. These defendants are initially
presumed to have e qual shares of the market and are liable for only the percentage
of plaintiff’s judgment that represents their presumptive

share

of the

market.

These defendants are entitled to rebut this presumption and thereby reduce their
potential liability by establishing their respective market share of [Factor VIII] in
the … market.
Martin, 102 Wash.2d 581, 605 (1984). As to several liability, we adopt the the ory that a particular
defendant is only liable for its market share. Defendants failing to establish their proportionate share
of the market will be liable for the difference in the judgme nt to 100 percent of the market. However,
should plaintiff fail to name all members of the market, the plaintiff will not recover 100 percent of the
judgment if the named defendants prove an aggregate share of less than 100 percent.
3. Exculpatory Allowances
As a result of our determination that a national market is appropriate, as long as defendant is actually
one of the producers of Factor VIII, there is little to justify exculpation of defendant. However, the
exception would occur where defendant could prove that it had no product on the market at the time
of the injury. As far as the defendants in this suit are concerned, it appears that none of them would
be able to escape liability on that basis.

15

In conclusion, we will recognize the basic market share the ory of multi-tortfeasor liability, as defined
herein. Acknowledging that this could open a Pandora’s box of questions, we believe that we have
defined at least a starting point as to appropriately responding to the certified questions. However, as
we are de ciding issues in a virtual factual vacuum, we recognize that our opinion is limited to the facts
presented to us, and we reserve the right to modify or amend our answers to these questions.
MOON, Justice, concurring and dissenting.
[***][T]he majority’s departure from well established tort law in Hawaii is based on a factual record
that prevents plaintiff from establishing the existence of a legal duty and breach of *441 that duty,

15. The precursor of the DES cases is Sindell v. Abbott Laboratories, 26 Cal.3d 588 cert. denied, 449 U.S. 912 (1980). Sindell
arose when demurrers were sustained as to several manufacturers of DES, on the basis that plaintiff could not identify
whose product caused the injury. Id., 163 Cal.Rptr. at 134, n. 3. The Sindell court considered the four main theories.
Michigan approved both the concert of action and alternate liability theories in a DES case up on summary judgment.
Abel v. Eli Lilly and Co., 418 Mich. 311 (1984). In the same year, the Washington Supreme Court addressed the issue on
appeal from summary judgment, in Martin v. Abbott Laboratories, 102 Wash.2d 581 (1984). The Martin court reanalyzed
the theories enumerated in Sindell, and then created the market-share alternate liability. A federal court in Illinois
tentatively allowed the alternate liability theory in a DES case, acknowledging that the Illinois Supreme Court had not
yet addressed the issue. Poole v. Alpha Therapeutic Corp., 696 F.Supp. 351 (N.D.Ill.1988). Later, the Illinois Supreme Court
did address a DES case, but only as to the market share theory of liability—which it refused to adopt. Smith v. Eli Lilly &
Co., 137 Ill.2d 222 (1990). In New York, as in Florida, state courts adopted market share theories as viable in DES
cases. Hymowitz v. Eli Lilly and Co., 73 N.Y.2d 487 (1989) (on certified questions, and adopting the national market as the
base market); Conley v. Boyle Drug Co., 570 So.2d 275 (Fla.1990) (adopting Washington's version of market share liability,
and summarily disposing of the other theories).
394 | Negligence: Causation

based on a provable standard of care, which is essential to the application of the market share the ory
of liability. [***]
Initially, it is important to note that until today, negligence liability under Hawaii law required a
plaintiff to prove by a preponderance of the e vidence four essential elements: 1) the e xistence of a legal
duty; 2) breach of that duty; 3) causation; and 4) injury. Knodle v. Waikiki Gateway Hotel, Inc., 69 Haw.
376 (1987). However, the market share liability theory imposes liability without requiring identification
of the wrongdoers who caused plaintiff’s harm and shifts the burden to defendants to prove that
they did not cause the plaintiff’s injury. Eliminating causation as an element of proof and shifting the
burden to the defendant is [***] a radical departure from traditional negligence law. [***]
In 1988, the American Medical Association reported that “in the pharmaceutical industry, meaningful
product liability insurance has all but disappe ared.” A.M.A., Report of the Board of Trustees on Impact
of Product Liability on the Development of New Medical Technologies 2 (1988). This lack of insurance is
largely due to the development of non-identification theories of liability.

16

*446 The application of the market share liability theory may result in liability being placed on
defendants bearing no responsibility for the defective product and may create unpredictable costs
to innocent parties [***] The primary authority cited by the majority in support of its position is
the DES case of Sindell v. Abbott Laboratories, 26 Cal.3d 588, cert. denied, 449 U.S. 912 (1980), which
was the first to judicially promulgate the market share liability theory. In Sindell, the “DES daughter”
plaintiff sought to recover damages for injuries resulting from cancer caused by DES, a miscarriage
preventative. The mother ingested the drug over twenty years prior to the cause of action being
filed. The trial court dismissed the action on the ground that plaintiff had conceded that the spe cific
manufacturers of the drug could not be identified.
On appeal, the Supreme Court of California adopted the market share liability theory, which relieved
plaintiff of the burden of identifying which of over 200 companies manufactured the DES drug
ingested by her mother. The court, in reaching this *447 conclusion, reasoned: “In our contemporary
complex industrialized society, advances in science and te chnology create fungible goods which may
harm consumers and which cannot be traced to any specific producer.” Sindell, 26 Cal.3d at 610. The
court determined that two essential factual elements, fungibility and the inability to identify specific
producers, must be present in order for the market share liability theory to be appropriate. Both
elements are glaringly absent in the Factor VIII case before us. [***]
The primary authority cited by the majority in support of its position is the DES case of Sindell v.
Abbott Laboratories, 26 Cal.3d 588, cert. denied, 449 U.S. 912 (1980), which was the first to judicially
promulgate the market share liability theory. In Sindell, the “DES daughter” plaintiff sought to recover
damages for injuries resulting from cancer caused by DES, a miscarriage preventative. The mother
ingested the drug over twenty years prior to the cause of action being filed. The trial court dismissed

16. See United States Department of Justice, Report of the Tort Policy Working Group on the Causes, Extent and Policy
Implication of the Current Crisis in Insurance Availability and Affordability 33–35 (Washington, D.C. Government
Printing Office, Feb. 1986).
Negligence: Causation | 395

the action on the ground that plaintiff had conceded that the spe cific manufacturers of the drug could
not be identified.
On appeal, the Supreme Court of California adopted the market share liability theory, which relieved
plaintiff of the burden of identifying which of over 200 companies manufactured the DES drug
ingested by her mother. The court, in reaching this *447 conclusion, reasoned: “In our contemporary
complex industrialized society, advances in science and te chnology create fungible goods which may
harm consumers and which cannot be traced to any specific producer.” Sindell, 26 Cal.3d at 610. The
court determined that two essential factual elements, fungibility and the inability to identify specific
producers, must be present in order for the market share liability theory to be appropriate. Both
elements are glaringly absent in the Factor VIII case before us. [***]
IV. Judicial Restraint
The majority’s primary reason for adopting the market share liability theory, in a form that is even
more e xpansive than in Sindell, is that “the harshness of the result, that is, burdening the innocent
plaintiff without a remedy, to us seems totally unfair and out of step with current efforts to allow
recovery when the proper case is brought.”
I, too, sympathize with Smith’s tragic situation. However, this court has been faced with similar
situations and has applied judicial restraint by declining to expand established principles of the
common law merely to provide a remedial measure. [***]
I submit that this court is again confronted with an issue which it is ill-equipped to rule upon. There
are too many unanswered questions of social, economic, and legal import, which only the legislature,
with its investigative powers and procedures, can determine. Deference to the le gislature is especially
appropriate due to the le gislature’s enactment of the blood shield statute and the impact that any
non-identification theory such as market share may have on the blood products industry.
Furthermore, I disagree with the majority’s statement that Hawaii would be “out of step with current
efforts to allow recovery when the proper case is brought.” As defendant Cutter Biological notes in
its answering brief, since the initial adoption of market share liability in Sindell, the highest courts of
only four other states have adopte d that theory. Conley v. Boyle Drug Co., 570 So.2d 275 (Fla.1990) (DES
case); Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, cert. denied, 493 U.S. 944, (1989) (DES case); Collins v.
Eli Lilly & Co., 116 Wis.2d 166, cert. denied, 469 U.S. 826 (1984) (DES case); Martin v. Abbott Laboratories,
102 Wash.2d 581 (1984) (DES case).
Four state supreme courts have rejected the market share the ory of liability doctrine: Smith v. Eli Lilly
& Co., 137 Ill.2d 222 (1990) (DES case); Shackil v. Lederle Laboratories, 116 N.J. 155 (1989) (DPT vaccine
case); Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67 (Iowa 1986) (DES case); and Zafft v. Eli Lilly & Co., 676
S.W.2d 241 (Mo.1984) (DES case).
*456 A number of federal courts have also rejected the doctrine: Tidler v. Eli Lilly & Co., 851 F.2d
418 (D.C.Cir.1988) (DES case); Morton v. Abbott Laboratories, 538 F.Supp. 593 (M.D.Fla.1982) (DES case);
Mizell v. Eli Lilly & Co., 526 F.Supp. 589 (D.S.C.1981) (DES case); Ryan v. Eli Lilly Co., 514 F.Supp.
1004 (D.S.C.1981) (DES case). An empirical study of this issue concluded that “[i]n the last se veral
396 | Negligence: Causation

years decisions in a number of jurisdictions clearly indicate that courts are in no mood to e xtend
that expansionary doctrine [market share liability] any further.” Henderson & Eisenberg, The Quiet
Revolution in Products Liability: An Empirical Study of Legal Change, 37 U.C.L.A. L. Rev. 479, 492 (1990)
(emphasis added).
The Iowa Supreme Court in Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67 (Iowa 1986), aptly states some
of the basic reasons why non-identification theories, which eliminate causation as an element of
plaintiff’s proof, should not be adopted by the courts:
We acknowledge that plaintiff in a DES case with an unidentified product manufacturer
presents an appealing claim for relief. Endeavoring to provide relief, courts have de veloped
theories which in one way or another provided plaintiffs recovery of loss by a kind of
court-constructed insurance plan. The result is that manufacturers are required to pay or
contribute to payment for injuries which their product may not have caused.
This may or may not be a desirable result. We believe, however, that awarding damages to
an admitted innocent party by means of a court-constructed device that places liability on
manufacturers who were not proved to have caused the injury involves social engineering
more appropriately within the legislative domain. In order to reach such a determination,
three broad policy questions must be answered. One is whe ther the burden *457 of damages
for these injuries should be transferred in a constitutional manner to the industry
irrespective of an individual manufacturer’s connection with the particular injury. If so, the
second question relates to the principles and procedures by which the burden would be
transferred. Finally, how do we ascertain the e xtent of damages to be assessed against
each manufacturer? … Plaintiffs request that we make a substantial departure from our
fundamental negligence requirement of proving causation, without previous warning or
guidelines. The imposition of liability upon a manufacturer for harm that it may not have
caused is the very legal legerdemain, at least by our long held traditional standards, that we
believe the courts should avoid unless prior warnings remain unheeded. It is an act more
closely identified as a function assigned to the legislature under its power to enact laws.
Mulcahy v. Eli Lilly Co., 386 N.W.2d 67, 75–77 (Iowa 1986).
Leaving plaintiff without a remedy is a harsh result, however, this is not the proper case upon
which this court should innovate and radically change the e xisting law. The application of market
share liability in the context of this case would essentially make e ach defendant manufacturer an
insurer of any infected individual who “might” or “could” have use d its Factor VIII concentrate. [***]
[S]uch a broad imposition of liability is wholly unjustified, unfair, and likely to discourage the future
development and sale of blood therapies. The decision of whether such an expansive the ory *458 of
liability should apply as against manufacturers of blood products is best left to the legislature, which
is equipped to address the “Pandora’s box” of questions that the majority acknowledges results by
today’s decision.
I submit that the majority is mistaken if its characterization of the record as a “virtual factual vacuum”
means that the facts are insufficient, and thus a trial is necessary to develop additional facts in this
Negligence: Causation | 397

case. Additional facts will not change the ine vitable—that is, Smith’s inability to establish when and
how he was infected by the HIV virus, and the fact that information regarding AIDS and the te chniques
to detect the HIV virus were just being developed during the pertinent period, make it impossible for
Smith to prove a standard of care. The majority’s decision now allows all of the parties to proceed to
trial, which undoubtedly will result in substantial costs and attorneys’ fees being incurred. However,
the expenditure of time and money will be for naught.
Note 1. What is the significance of the court’s declining to adopt alternate liability, enterprise or
industry-wide liability and joint and several liability but allowing market share liability? What is the
likely effect of that scope? How does the court delimit the scope of market share liability further?
Note 2. The majority opines that “tort law is a continually expanding field.” Yet in judicial opinions
declining to expand the

scope

of tort law, you have

likely seen statements to the

contrary, or

arguments against tort law’s expansion. What justification does the court offer here for the ne ed for
such expansion in the case at bar?
Note 3. What are the disse nt’s arguments against the application of market share liability? Which
opinion is more persuasive to you and why?
Note 4. In a footnote, the majority opinion distinguishes prior case law that found it was a breach of
duty that defendant had not “use[d] “high risk” questioning as to the specifics of whether the donor
was a homosexual… the donor who was clearly identified, would not and did not admit that he was
a member of one of the “high risk” groups for AIDS.” At the height of the AIDS epidemic, fears of
contagion and misunderstanding about the disease were rampant.
As the

COVID-19 pandemic gripped the

world in 2020 and 2021, many of the

same

fears and

controversies about infectiousness and contagion vectors arose. A recent essay shared the
perspective of one man who drew parallels between the two eras: “From the number of complaints I’m
hearing of pandemic fatigue and the wide spread resistance to simple precautionary measures such as
wearing a mask at the grocery store, it’s clear to me that many people don’t fully appreciate what the
gay community has been dealing with for the past 40 years and don’t understand how we survived the
AIDS epidemic.”
https://www.gaystarnews.com/article/how-to-survive-a-pandemic-by-a-gay-man-whos-livedthrough-one-before/ (September 25, 2020)
It was almost certainly more difficult socially to come out as bise xual, gay or transgender in the 1980s
and AIDS ramped up the challenges by layering on irrational fears of contagion. What do you think of
tort cases considering whether a party breached its duty in some way by not asking about a plaintiff’s
sexual orientation? Was it understandable—as a public health matter—to hold a party liable for not
inquiring if evidence proved that sexual orientation was correlated with higher risk of AIDS? Or should
a sense of privacy, propriety, dignity, or some combination of those have be en permitted to shield
providers and patients from a legal obligation to ask?
Would your answer change if it turned out that the reason for providers not wanting to broach the
topic with patients carried legal consequences for patients, such as loss of a job or cancellation of
398 | Negligence: Causation

medical insurance, that providers wished to avoid? How about if providers simply wished to avoid
asking because the y wanted to provide safe (and often free) medical care in the community without
patients’ fearing that their sexual orientation would be

oute d? What if e
vidence

suggested that

patients wouldn’t seek testing if they knew they had to reveal their sexual orientation? What is tort
law’s responsibility, if any, to take such factors into account when considering what is reasonable
under the circumstances?

Expand On Your Understanding – Causation Hypotheticals

Review the following hypotheticals. Turn each card to reveal the answer.

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=62#h5p-82

Negligence: Causation | 399

20. Negligence: Proximate Cause
In theory, proximate

can be

summe d up simply: The term “proximate

cause” is shorthand for a

concept: Injuries have countless causes, and not all should give rise to le gal liability.” CSX Transp.,
Inc. v. McBride, 564 U.S. 685, 692 (2011). In practice, scholars, students and lawyers have found it a
challenge: “ ‘Proximate cause remains a tangle and a jungle, a palace of mirrors and a maze … [It]
covers a multitude of sins … [and] is a complex term of highly uncertain meaning under which other
rules, doctrines and reasons lie burie d.’ ” William L. Prosser, Proximate Cause in California. 38 Cal. L.
Rev. 369, 375 (1950).
Without adopting an outlook quite as gloomy as the late De an Prosser’s, it is fair to say that proximate
cause can be a confusing area of tort law. The first complexity is in the interplay with duty as you
have se en already in Palsgraf. The se cond issue is the relationship to causation in fact and the risk of
conflating the inquiries as you will see in the first case you read in this section, Camp v. Jiffy Lube. The
third challenge of proximate cause is that jurisdictions use diverse formulations or tests and these
can vary to some e xtent. Nonetheless, understanding the main patterns, their interrelationships and
their origins in case law proves clarifying. Finally, the last challenge associated with proximate cause
is its unpredictability and malleability. Because it is expressly infused with normative de cisions and
policy assessments, it can seem unruly and difficult to categorize or predict.

Questions or Areas of Focus for the Readings:
• What does it mean to formulate a “test” for proximate cause? Who does so, and who applies it?
• What is the significance, in practical terms, of differing tests for proximate cause?
• To the extent that proximate cause exists as a policy determination whose primary effect is to
limit liability, when should that determination be a question of fact for the jury? Given that duty
exists as a gate-keeping (potentially liability-limiting) doctrine as a matter of law for the judge to
determine, when do cases resolve issues as a function of proximate cause instead of duty, and
when should they do so, in your view?
• A common way to understand proximate cause cases relative to “garden-variety” (or more
ordinary) negligence cases is that the facts usually involve something highly unusual,
extraordinary or freakish. The cases select for such fact patterns because one of the issues being
litigated, as a question of fact, is the unforeseeability of the nature of the harm, or the extent of
it, perhaps, or the unforeseeability of the plaintiff. What do you observe about the kinds of
injuries in the cases that follow? What defenses recur and why do you think that is?

400 | Negligence: Proximate Cause

Camp v. Jiffy Lube, Superior Court of New Jersey (1998)
(309 N.J. Super. 305)
The principal issue on this appe al is whether the trial court properly charged the jury on proximate
cause. We conclude the charge was improper. Accordingly, we reverse and remand for a new trial.
The essential facts giving rise to the appe al began on July 13, 1993, when William Camp (plaintiff) left
his 1989 Chevrolet at defendant’s facility for a routine oil change. After servicing the car, defendant’s
employees had trouble closing the hood. After *308 several attempts, the employees were able to
close the hood. However, when plaintiff picked up the car, no one told him of the difficulty closing
the hood. Plaintiff drove about five blocks when the hood suddenly flew open and broke the car’s
windshield. Plaintiff, contending he sustained bodily injuries as a result, filed a complaint seeking
compensatory damages he alleged were proximately caused by defendant’s employees’ negligence.
Plaintiff’s wife also sought damages for loss of consortium.
In a liability-only trial, plaintiff contended defendant was negligent because its employees failed to
properly shut the hood or be cause the y should have notified or warned him about the problem
experienced with shutting the hood but faile d to do so. In light of plaintiff’s contentions, the trial court
instructed the jury on proximate cause.
The court stated:
The burden of proof is on the plaintiff to establish his claim by a preponderance of the
evidence…. In this case, the plaintiff, Mr. Camp, has the

burden of establishing by a

preponderance of the e vidence all the facts necessary to prove that the defendant either
didn’t properly close the hood, or faile d to notify him of problems with the hood so he could
have taken the proper steps to deal with it.
….
I have indicated to you previously that the term accident in this case does not necessarily
mean a multiple or e ven a one-car collision. The term accident, as used in these jury
instructions, means incident. Thus, you are not required to find that an accident occurred,
but that an incident occurred. The incident in question is the hood of the plaintiff’s car
striking the plaintiff’s windshield. In this case, the plaintiff contends that the defendant was
negligent in failing to properly shut or close the front hood of the car, and/or failing to
advise the plaintiff of the problem in shutting or closing the hood of the vehicle so that he
could take whatever actions … he would deem necessary. ….
Ladies and gentlemen, you have he ard me use the te rm proximate cause…. In order for
the plaintiff whose claims you are considering to recover damages, such damages must be
proximately caused by the actions or the inactions of the defendant.
By proximate cause is me ant that the action or the inaction of the defendant was the
efficient cause, the one that naturally set the other causes in motion, and without which the
Negligence: Proximate Cause | 401

damages claimed or the injuries claimed would not have resulted. The law requires that the
damages chargeable to the de fendant must be shown to be the natural and probable effects
of the actions or the inactions of the defendant. [Emphasis added.] *309
The jury returned a verdict against plaintiff by answering “No” to the verdict sheet question, “Was the
Defendant, Jiffy Lube, negligent, which negligence was a proximate cause of the incident?” After the
trial court denied a motion for a new trial, plaintiff and his wife appealed the ensuing judgment.
They contend the trial court’s proximate cause charge was not only inappropriate given the fact issues
for jury resolution but also because the court, in explaining proximate cause, told the jury it meant
they had to determine whether defendant’s action or inaction “was the efficient cause, the one that
naturally set the other causes in motion, and without which the damages claimed or the injuries
claimed would not have resulted.” [Emphasis added.] We agree the court failed to tailor the proximate
cause definition to the facts of the case and compounded that failure by utilizing the definite article
“the” in the definition.
Proximate cause is a limitation the common law has placed on an actor’s responsibility for the
consequences of the actor’s conduct. It is “a complex term of highly uncertain meaning.” William L.
Prosser, Proximate Cause in California, 38 Cal. L. Rev. 369, 375 (1950) [c]. It requires careful definition
in jury charges to avoid misleading the jury. [c]
When instructing a jury on proximate cause, trial courts must distinguish between the routine tort
cases and cases where concurrent causes of harm are present. In the former, “ ‘the law requires proof
that the result complained of probably would not have occurred “but for” the negligent conduct of
the defendant.’” [cc] In the latter, the law requires consideration of the “substantial factor” test. The
“but for” standard concentrates on one cause that sets the *310 other causes in motion, while the
“substantial factor” test recognizes that “ ‘a tortfeasor will be held answerable if its “negligent conduct
was a substantial factor in bringing about the injuries,” even where there are “other intervening causes
which were foreseeable or were normal incidents of the risk created.”’” [cc] In the latter circumstance,
“[a]lthough the law of negligence recognizes that there may be any number of concurrent causes of
an injury, ‘[n]evertheless, these acts need not, of themselves, be capable of producing the injury; it is
enough if they are a “substantial factor” in bringing it about.’” [cc]
The charge here include d no instruction on the “substantial factor” test. Instead, it improvidently
focused the jury on the “but for,” or cause that set other causes in action, in an instance where there
was evidence of concurrent causes for the harm: the de fective hood, the improper shutting of the
hood, and the failure to warn about the defective hood. The charge should have be en tailored to deal
with the concurrent causes projected by the facts in evidence.
The charge compounded the improvident concentration on the ne ed for the jury to concentrate on an
exclusive cause that set other causes in motion when it instructed plaintiff was required to establish
that defendant’s negligence was the proximate cause of the harm that occurred. Emphasis on the
rather than a cause unduly directed the jury’s focus to a “but for” single cause. In Ellis v. Caprice, 96
N.J. Super. 539, 549 (App. Div.), certif. denied, 50 N.J. 409 (1967), we reversed a *311 judgment in favor

402 | Negligence: Proximate Cause

of defendants when the trial court used the definite article “the ” in defining proximate cause for the
jury. We conclude the same charge mistake here requires reversal.
Nonetheless, defendant argues the charge read as a whole makes the trial court mistake harmless
error. Our rationale for rejecting the same argument in Ellis is applicable here: “regardless of how well
intentioned the jury may have be en, it had no way of knowing which of the two versions represented
the correct rule.” [c]. Only an express statement by the trial court that its original proximate cause
charge was incorrect would have salvaged the charge. [c] There was no such express statement.
In sum, the proximate cause charge misle d the jury on the term’s essential elements in the factual
context of the case. Here, plaintiff was entitled to a charge that the jury should consider whether
defendant’s failure to give notice, or failure to properly close the hood, was negligence that was
a substantial factor in causing the accident giving rise to the injuries. Instead, the jury received a
charge that focused on the cause for the accident. By placing emphasis on the cause, the trial court
misdirected the jury’s focus to one that had the potential for placing too much emphasis on the
defective latch as the cause and not enough on the failure to give notice or failure to properly close
the hood, or both. Conse quently, the jury was not sufficiently instructed on the applicable law so that
it could perform its function. [c]
Reversed and remanded for a new trial.
Note 1. The court faults the jury instruction for incorrectly using the definite article, “the” rather than
the indefinite “a.” In your own words, why does this matter to the outcome in this case?
Note 2. The improper jury instructions also confused the two inquiries of causation. Do you see how?

In re Arbitration Between Polemis and Furness, Withy & Co., Ltd, Court
of Appeal (1921)
(3 King’s Bench 560)
BANKES, L.J. By a time charter party dated February 21, 1917, the respondents chartered their vessel
to the appellants. * * * The vessel was employed by the charterers to carry a cargo to Casablanca in
Morocco. The cargo included a quantity of benzine or petrol in cases. While discharging at Casablanca
a heavy plank fell into the hold in which the pe trol was stowed, and caused an explosion, which set
fire to the vessel and completely destroyed her. The owners claimed the value of the vessel from the
charterers, alleging that the loss of the vessel was due to the ne gligence of the charterers’ servants.
The charterers contended * * * that the damages claimed were too remote. The claim was referred
to arbitration and the arbitrators stated a special case for the opinion of the Court. Their findings
of fact are as follows: The arbitrators found that the ship was lost by fire; that the fire arose from a
spark igniting the pe trol vapor in the hold; that the spark was caused by the falling board coming into
contact with some substance in the hold; and that the causing of the spark could not reasonably have
been anticipated from the falling of the board, though some damage to the ship might reasonably have

Negligence: Proximate Cause | 403

been anticipated, and stated the damages at £196,165 1s. 11d. * * * In the present case the arbitrators
have found as a fact that the falling of the plank was due to the ne gligence of the defendants’ servants.
The

fire

appe ars to me

to have

be en directly caused by the

falling of the plank. Under these

circumstances I consider that it is immaterial that the causing of the spark by the falling of the
plank could not have be en reasonably anticipated. The appellants’ junior counsel sought to draw a
distinction between the anticipation of the e xtent of damage resulting from a negligent act and the
anticipation of the type of damage resulting from such an act. He admitted that it could not lie in the
mouth of a person whose negligent act had caused damage to say that he could not reasonably have
foreseen the extent of the damage, but he contended that the negligent person was entitled to rely
upon the fact that he could not reasonably have anticipated the type of damage which resulted from
his negligent act. I do not think that the distinction can be admitted.
Given the breach of duty which constitutes the negligence, and given the damage as a direct result of
that negligence, the anticipations of the person whose negligent act has produced the damage appe ar
to me to be irrelevant. I consider that the damages claimed are not too remote. * *
SCRUTTON, L.J. * * * The second defense is that the damage is too remote from the negligence, as it
could not be reasonably foreseen as a consequence. * * * [I]f the act would or might probably cause
damage, the fact that the damage it in fact causes is not the exact kind of damage one would expect is
immaterial, so long as the damage is in fact directly traceable to the ne gligent act, and not due to the
operation of independent causes having no connection with the negligent act, except that they could
not avoid its results. Once the act is negligent, the fact that its exact operation was not foreseen is
immaterial. * * * In the present case it was negligent in discharging cargo to knock down the planks of
the temporary staging, for they might easily cause some damage either to workmen, or cargo, or the
ship. The fact that they did directly produce an une xpected result, a spark in an atmosphere of petrol
vapor which caused a fire, does not relieve the pe rson who was negligent from the damage which his
negligent act directly caused.
For these reasons the e xperienced arbitrators and the judge appe aled from came, in my opinion, to a
correct decision, and the appeal must be dismissed with costs.
Note 1. Is the following Polemis dicta simply a restating of the causa causans principle in Guille v.
Swan, supra [Module 1]? “The fact that they did directly produce an une xpected result, a spark in an
atmosphere of petrol vapor which caused a fire, does not relieve the pe rson who was negligent from
the damage which his negligent act directly caused.” Polemis notes that a defendant may sometimes
bring a defe nse on the grounds that “the damage is too remote from the negligence, as it could not be
reasonably foreseen as a consequence.” Is this a limit on causa causans? What principle is being used
to set that limit if so?
Note 2. As you read the pattern jury instruction that follows, keep the reasoning from Polemis in mind.
Can you see the connection? Although Polemis is no longer good law in England where it was decided
a century ago, its influence has permeated American case law on the issue of proximate cause.

404 | Negligence: Proximate Cause

Tests in the Proximate Cause Analysis
Although many formulations exist, the

two most common are

the

directness test and the

foreseeability test. The Restatement has tried to popularize a “scope of the risk” test but it has failed
to gain practical traction in the case law whether or not it is influential in other domains. In addition,
many jurisdictions add language of substantiality requiring that the plaintiff prove that the defendant’s
breach was a substantial factor in the plaintiff’s injuries. As you read examples of jury instructions that
illustrate the various formulations of the test, keep causation and proximate cause distinct even where
the language appears to conflate the two.
1. “Directness” Test
Washington Pattern Jury Instructions–Civil
WPI 15.01 Proximate Cause—Definition
The term “proximate cause” means a cause which in a direct sequence [unbroken by any
superseding

cause,] produces

the [injury] [event] complained

of

and

without

which

such [injury] [event] would not have happened.
[There may be more than one proximate cause of an [injury] [event].]
WPI 15.01 Proximate Cause—Comment
There have be en many attempts to define “proximate cause.” In Washington it has been
defined both as a cause which is “natural and proximate,” Lewis v. Scott, 54 Wn.2d 851, 857,
341 P.2d 488 (1959), and as a cause which in a “natural and continuous sequence” produces the
event, Cook v. Seidenverg, 36 Wn.2d 256, 217 P.2d 799 (1950). Some authorities, in an effort to
simplify the concept of proximate cause for jurors, have substituted the term “legal cause.” See,
e.g., Restatement (Second) of Torts § 9 (1965). However, the “direct sequence” and “but for”
definition adopted in this instruction is firmly entrenched in Washington law.
6 Wash. Prac. Wash. Pattern Jury Instr. Civ. WPI 15.01 (7th ed.)
Note 1. Washington state’s jury instruction, above, on proximate cause and related comments, reflects
how the

profession has synthesized prior cases. But it is also somewhat confusing in that in

Washington, “proximate

cause” appears to subsume

causation in fact (“and without which

such [injury] [event] would not have happened.”) Recall the emphasis in Camp v. Jiffy Lube, however,
differentiating “the cause” from “a cause.” The ne xt line of the model instruction adds the potential to
clarify that: “[t]here may be more than one proximate cause of an [injury] [event].” This conclusively
differentiates but-for causation and proximate causation.
Note 2. New Jersey also adopts a Polemis-oriented directness test and it similarly links the two kinds
of causation:
“By proximate cause, I refer to a cause that in a natural and continuous sequence produces
the resulting injuries or losses and without which the resulting injuries or losses would not
Negligence: Proximate Cause | 405

have occurred. A person who admits liability is held responsible for any injuries or losses that
result in the ordinary course of events from the happening of the accident. That means that
you must find that the resulting injuries or losses to plaintiffs would not have occurred but
for the happening of the accident. If you find that but for the happening of the accident
plaintiffs’ injuries and/or losses would not have occurred, then you should find that the
accident was a proximate cause of plaintiff’s injuries and losses.” See Model Jury Charge (Civil),
6.10, “Proximate Cause – General Charge” (rev. Nov. 2019), applied in Serra-Wenzel v. Rizkalla,
No. A-5009-18T3, 2020 WL 6123085, at *2 (N.J. Super. Ct. App. Div. Oct. 19, 2020) (emphasis
supplied).
Note 3. Colorado appears to determine causation based on directness and to require foreseeability
for proximate cause: “The requirement of but-for causation is satisfied if the negligent conduct
in a natural and continued sequence, unbroken by any efficient, intervening cause, produce[s] the
result complained of, and without which that result would not have occurred…. foreseeability is the
touchstone of proximate cause.” Deines v. Atlas Energy Servs., LLC, 2021 COA 24, ¶ 12, 13 (internal
citations omitted).

Exam tip: So long as you keep the two inquiries of factual and proximate causation distinct, the label
or particular test may not matter much. Do remember that it is a mistake to conflate the two
inquiries or to skip either one, whatever names they have in a given jurisdiction. Recall that cause-infact is descriptive and proximate cause is normative.

Again: cause in fact generally asks if cause can be proven; proximate cause assumes that it can be
factually proven at some le vel and asks whether liability should apply given the circumstances and
policy considerations. You can think of proximate cause as an escape valve; it is a doctrine that limits
liability even in cases in which duty, breach, cause-in-fact and harm are otherwise met.
2. “Foreseeability” Test

Stewart v. Wild, Supreme Court of Iowa (1923)
(196 Iowa 678)
The alleged negligence of the defendant is charged in the petition in the following terms:
“That on or about the 30th day of May, 1920, the plaintiff, her husband, and two sons, were driving
in the plaintiff’s automobile on and along the said White Pole road in an easterly direction. That one
of the plaintiff’s said sons was driving and operating the plaintiff’s husband’s said automobile in a
cautious and careful manner and at a moderate and lawful rate of speed. That when at a point on
said highway adjacent to the land owned and operated by the defendant, some hogs, belonging to
defendant, which the said defendant had negligently, carelessly, and unlawfully permitted to stray
406 | Negligence: Proximate Cause

from (upon) said highway, suddenly jumped out of a depression or sunken road, running at right angles
with said highway on the west side of said highway, and ran out upon the traveled part of said highway,
directly in the path of the plaintiff’s husband’s said automobile. That plaintiff and the other occupants
of the said car were unaware of the presence of said hogs until they, the said hogs, ran out from the
said depression or sunken road directly in the path of his said automobile. That, although the driver
of said car, the plaintiff’s said son, exerted every effort to avoid a collision with the said hogs, he was
unable to do so. That one of defendant’s said hogs ran directly under the left front wheel of plaintiff’s
husband’s automobile, causing it, the said automobile, to turn turtle and to throw plaintiff and the
other occupants of plaintiff’s husband’s said automobile violently to the ground.
That at the time of the said collision, the defendant was standing in the barnyard of the said farm, e ast
of the said highway. That just as the plaintiff’s husband’s automobile reached the point at, or near, said
depression or sunken road, the defendant called the said hogs. That the said hogs jumpe d up and ran
out upon the traveled part of the said highway, in the path of the plaintiff’s husband’s said automobile,
in response to the defendant’s said call. That defendant knew full well, or should have known, that the
said hogs would jump out of the said depression or sunken road in response to his said call, and run
out in the traveled part of the highway directly in the path of the said automobile.
That the defendant above name d was guilty of negligence and carelessness in connection with the
matter of said hogs being upon said public roadway, in that said defendant did fail to restrain said
hogs from running at large and did fail to restrain said hogs from going upon public roads for travel or
driving, and in that said defendant did fail to keep the said hogs under his immediate care and efficient
control, as provided by section 2314 of the Code of Iowa 1897.
That defendant was guilty of carelessness and negligence, in that, in addition to failing to restrain
said hogs from going upon a public roadway, he did commit an affirmative act of negligence and
carelessness, in that he did call his hogs from the othe r side of the roadway from where he was
located, at a time when automobiles, and particularly when the automobile in which plaintiff was
riding, was passing along said roadway, which fact was known to defendant, or, in the e xercise
of reasonable care, should have be en known to defendant, thus causing said hogs to quickly and
suddenly run upon and in front of the automobile in which plaintiff was riding, and causing said
automobile to turn turtle as hereinbefore stated.”
*268 The demurrer to the foregoing was predicated upon the three following grounds:
1. It appears from the plaintiff’s petition that no negligence on defendant’s part, of which plaintiff has
a right to complain, was the proximate cause of plaintiff’s injury, if any she suffered.
2. Even if the matters and things set forth in plaintiff’s petition were true , the fact that some of
defendant’s hogs were on the public highway, if such were a fact, does not render him liable for
automobile accidents or make him an insurer of the safety of persons traveling along the public
highway, so far as a collision between a pig and an automobile is concerned.
3. The matters and things set out in plaintiff’s petition as negligence or as improper or unlawful acts
on the part of defendant are not such matters and things as to enable the plaintiff to base a cause
of action thereon against the defendant or to entitle her to recover against him, because the mere
Negligence: Proximate Cause | 407

escape of hogs from an inclosure is not negligence, and a collision between a hog and an automobile
on a public highway is not such a thing as defendant could or would be bound to anticipate, if his hogs
should escape from an inclosure on to the public highway.”
The

argument of the appellee

[hog owner] in support of the

foregoing grounds of demurrer is

predicated largely upon the twofold assumption:
(1) That the action is one for statutory damages under sections 2313 and 2314 of the Code.
(2) That such statute has no application to the rights of a traveler upon the highway, and that
it imposes upon the owner of swine no duty with reference to such highway travel.
The record indicates that such was the controlling reason for the sustaining of the demurrer. We
note first, therefore, that this conception of the nature of the action is an erroneous one. The
petition discloses an ordinary action at law for damages for negligence. In such an action, it is always
incumbent upon the plaintiff to plead and to prove the alle ged negligence. Negligence is the breach
of some duty, imposed either by common law or by statute upon the offending party. If the duty be
imposed, then a breach of it is actionable, if it result proximately in injury to another; and this is
equally true whether the duty be imposed by common law or by statute.
The petition charges two negligences:
(1) That the defendant negligently permitted his hogs to run at large upon the highway.
(2) That he was affirmatively negligent in calling his hogs under the circumstances existing at
the time of such calling.
For the moment we shall ignore the latter charge, and consider only whether the first was a sufficient
allegation of negligence. At common law, it was the duty of the defendant to restrain his hogs from
running at large. He had the common right of the public to drive the m upon the highway while in
charge of a caretaker. He had no right to permit them to run upon the highway without a caretaker.
This rule of the common law has not been abridged by our statute. On the contrary, it has been
expressly confirmed. Section 2314 expressly prohibits the owner of swine from permitting the same
to run at large at any time. It also defines the phrase “running at large” as follows:
“But stock shall not be considered as running at large so long as it is upon unimproved lands
and under the immediate care and efficient control of the owner, or upon the public roads for
travel or driving thereon under like care and control.”
The ne cessary effect of this statute is both to recognize and to impose upon the owner of hogs the
legal duty to restrain them from running at large, either upon the lands of another, or upon the public
highway. [***]
We hold, therefore, at this point that the allegation that the defendant negligently permitted his hogs
to run at large upon the highway is a sufficient allegation of negligence for the purpose of a demurrer.
Whether it should have be en made more spe cific is a question not involved in a consideration of the
demurrer. [***]

408 | Negligence: Proximate Cause

It is urged by appellee that the alleged negligence of the defendant was not the proximate cause of
the injury suffered, in that the accidental collision of the hog with the plaintiff’s automobile was an
accident or event that the owner of the hog could not have anticipated as a probable consequence of
his negligence. [***] On the general proposition [***] cited by the appellee, we are unable to give our
assent. It is the fundamental law of the highway that it is subject to the use of the traveling public,
and that it must be kept free from such obstructions as are not incident to its use for travel. Whatever
endangers travel thereon, and which is not incident to the lawful use or care of the highway, becomes
ordinarily a nuisance and a public peril.
In the days of the ox-drawn vehicle, it may be conceded that the presence of a hog upon the highway
would not present any imminent danger of a collision with the vehicle. In the later day of the swifter
moving horsedrawn vehicle, the presence of a hog at large be came an increased danger, though more
readily avoidable than in the still later day of the motor vehicle. In these days of general travel by
motor vehicle, we se e no room for saying, as a matter of law, that the presence of a hog at large upon
the highway does not suggest danger of collision with traveling vehicles. If it could be said, as a matter
of law, that the instincts of a hog stimulate him to an avoidance and escape from an approaching
vehicle, there might be some room for debate. But it could as well be said, and doubtless more
plausibly, that by the universal verdict of general observation his instincts and natural tendencies are
in the other direction, and that he will more likely, if not certainly, pass in front of a moving vehicle at
whatever time or place it comes within the short radius of his locomotion. Ordinarily the question of
proximate cause is one of fact for the jury, and we are not now dealing with the weight of evidence or
with expert opinion as to the habits or tendencies of the hog. The liability of owners for damages for
a collision of vehicles with stock, unlawfully running at large upon the highway, has heretofore be en
recognized by us quite as a matter of course without challenge by the defending litigant. [cc]
In the latter case we said:
“The statute to which this allegation has reference [meaning the allegation of the pe tition]
does not involve the doctrine of common-law negligence, upon which the liability in the
instant case must be and is predicated.”
We hold at this point that it cannot be said as a matter of law that a collision between a vehicle and
a hog, unlawfully running at large upon the highway, is an event too re mote to be de emed as the
proximate result of defendant’s negligence, if any.
One of the grounds of the demurrer was that the defendant is not liable for a mere escape of his hogs
from the inclosure in which the y were confined, and that such escape of the hogs did not constitute
negligence on the part of the owner; and this point is pressed in argument here. There is nothing in
the allegations of the pe tition to which this ground of the demurrer is apropos. … Upon trial, it will be
incumbent upon the plaintiff to prove the ne gligence, and it will be open to the defendant to negative
the same, both by affirmative as well as negative e vidence. Proof that the hogs were running at large
would doubtless be presumptive e vidence of defendant’s breach of statutory duty, and therefore of
negligence. What circumstances might be de emed as sufficient to excuse the de fendant and to render
him free from fault is a question not involved in the demurrer.

Negligence: Proximate Cause | 409

[***] It is our conclusion that the demurrer should have be en overruled, and that the *270 learned
trial judge erred in ruling otherwise. The judgment below is accordingly reversed, and the cause is
remanded accordingly.
Note 1. What exactly is the negligence alleged (and on what basis is it proven)?
Note 2. In your view, is this case one that should be resolved on grounds of duty, or proximate
cause? Would it matter to your determination what the jurisdiction looked like, socioculturally or
agriculturally?
Note 3. The test for proximate cause is not e xpressly stated in this case but the de fendant’s argument
raises a lack of foreseeability argument in vain: “the accidental collision of the hog with the plaintiff’s
automobile was an accident or event that the owner of the hog could not have anticipated as a
probable consequence of his negligence.”
Note 4. Many state s use some version of foreseeability in their proximate cause analysis. “Under
Utah law, “[p]roximate cause is that cause which, in natural and continuous sequence (unbroken
by an e
fficient intervening cause), produces the injury and without which the

result would not

have occurred. It is the efficient cause —the one that necessarily sets in operation the factors that
accomplish the

injury … Under Utah law, “[w]hat is necessary to meet the test of negligence

and proximate cause is that it be reasonably foreseeable, not that the particular accident would occur,
but only that there is a likelihood of an occurrence of the same general nature.’” [c]. The defendant
need not predict the e xact injury that flows from its negligence so long as the general nature of the
injury is foreseeable.” Jacobs-Peterson v. United States, 219 F. Supp. 3d 1091, 1096 (D. Utah 2016)
The ne xt case draws more e xplicitly on the concept of foreseeability and illustrates how it can operate
in both duty and proximate cause analysis.

410 | Negligence: Proximate Cause

21. Negligence: Foreseeability in Duty and
Proximate Cause Analysis (Socratic Script)
Warning: The next case features a pretty gory fact pattern. Steel yourselves.

Zokhrabov v. Park, Circuit Court of Illinois (2010)
(2010 WL 7198225) (Ill.Cir.Ct.) (Trial Order)
*1 These matters come before the court on plaintiff Gayane Zokhrabov’s motion for partial summary
judgment and defendant Jeung-Hee Park’s cross-motion for summary judgment pursuant to 735 ILCS
5/2-1010. This case arises out of a September 13, 2008 incident wherein an Amtrak train struck
and killed Hiroyuki Joho (“decedent”), defendant’s son. The impact of the collision caused decedent’s
body to fly through the air and hit plaintiff, causing her multiple injuries. Plaintiff filed a two-count
complaint against decedent’s estate (count I) and Northeast Regional Commuter RR Corporation
(count II). Count I sounds in negligence and count II has been voluntarily dismissed.
[Editor’s note, on appeal, the court provided a fuller statement of facts, which I include here]
“Hiroyuki Joho was killed when he was struck by an Amtrak train at the Edgebrook Metra
station at Lehigh and Devon Avenues in Chicago. Joho’s accident occurred just before 8 a.m.
on Saturday, September 13, 2008, when the 18–year–old man was crossing in a designated
crosswalk from the e astside passenger platform where Metra commuter trains arrive from
Chicago, to the westside passenger *1038 platform where Metra commuter trains depart
toward Chicago. Joho was about five minutes early for the ne xt scheduled Metra departure
to Chicago. The sky was overcast and it was raining heavily as he proceeded west across
the double se t of tracks, holding an open, black umbrella over his head and a computer bag
on a strap across his shoulder. The Metra station was not a destination for the Amtrak train
that was traveling south at 73 miles an hour, and the engineer in the bright blue locomotive
maintained speed, but sounded a whistle

which triggered automatic flashing headlamps.

Witnesses, nonetheless, disagreed as to whether Joho realized the train was approaching. He
was smiling at the commuters standing on the southbound platform when the train hit him.
A large part of his body was propelled about 100 feet onto the southbound platform where it
struck 58–year–old Gayane Zokhrabov from behind, knocking her to the ground. She sustaine d
a shoulder injury, a leg fracture, and a wrist fracture.” (963 N.E.2d 1035) [***]
Plaintiff moves for summary judgment on the issues of negligence and proximate causation Defendant
moves for summary judgment on the issue of duty. Plaintiff alleges that defendant’s decedent owed
plaintiff a duty of reasonable and ordinary care, and breached that duty when he:
(a) carelessly and negligently failed to keep a proper lookout for approaching trains; or
Negligence: Foreseeability in Duty and Proximate Cause
Analysis (Socratic Script) | 411

(b) carelessly and negligently ran in the path of an approaching train; or
(c) carelessly and negligently failed to yield the right of way to approaching trains.
She also attempts to impose a legal duty on decedent by citing to 625 ILCS 5/11-11-1011(c), which
states:
No pedestrian shall enter, remain upon or traverse over a railroad grade crossing or pedestrian
walkway crossing a railroad track when an audible bell or clearly visible electric or mechanical
signal device is operational giving warning of the presence, approach, passage, or departure of
a railroad train.
[***] *2 To dete rmine the e xistence of a duty, the court looks to the “relationship between defendant
and plaintiff, the

likelihood of injury, the

magnitude

of guarding against the

injuries, and the

consequences of placing that burden on defendant.” [c] However, “even if an injury was foreseeable,
foreseeability alone will not create a legal duty.” Establishing legal duty “requires more than a mere
possibility of occurrence.” Cunis v. Brennan, 56 Ill.2d 372, 376 (1974). One cannot be “expected to guard
against harm from events which are not reasonably to be anticipated at all, or are so unlikely to
occur that the risk, although recognizable, would commonly be disregarded.” Id. An “actor’s conduct
may be held not to be a legal cause of harm to another where after the event and looking back
from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it
should have brought about the harm.” Id. The court must be careful not to examine “what may appear
through exercise of hindsight” and must “consider what was apparent to the defendant at the time
of his now complained of conduct.” Id. When an “injury results from freakish, bizarre or fantastic
circumstances, no duty exists and no negligence claim can be asserted for injuries that were not
reasonably foreseeable.” [c]
“Statutes and ordinances designed to protect human life or property establish the standard of conduct
required of a reasonable person.” [c] These types of law “fix the me asure of legal duty.” Id. “A party
injured by such a violation may recover only by showing that the violation proximately caused his
injury and the statute or ordinance was intended to protect a class of persons to which he belongs
from the kind of injury that he suffered.” [c]
In Cunis, supra, plaintiff was involved in a collision and was injured when he was thrown from his
car and landed on a pipe in a parkway 30 feet away. He sue d, inter alia, the Village of LaGrange
which owned the parkway. After discussing statistics showing the frequency with which passengers
were ejected from cars after collisions, the Supreme Court nevertheless found that no duty was owed
because this accident was not reasonably foreseeable. Specifically, the court stated:
“The circumstance here of the plaintiff’s being thrown 30 feet upon the collision with a third
person’s automobile and having his leg impaled upon the pipe was tragically bizarre and may
be unique. We hold that the remote possibility of the occurrence did not give rise to a le gal
duty on the part of the Village to the plaintiff to protect against his injury.” [c]
The instant case is similar. The circumstance that a portion of decedent’s body would be thrown 100
feet into the plaintiff is “tragically bizarre”. In fact, this outcome was even less foreseeable to de cedent
412 | Negligence: Foreseeability in Duty and Proximate Cause Analysis (Socratic Script)

as his negligently crossed in front of the train than was that in Cunis. Also, plaintiff is not in the class of
those persons who were intended to be protected by 625 ILCS 5/11-1011(c). Section 11-1011 is intended
to protect pedestrians from being struck by a train.
Accordingly, defendant’s Cross-Motion for Summary Judgment is GRANTED, and plaintiff’s Motion for
Partial Summary Judgment is DENIED. This order is final and disposes of this case.

Zokhrabov v. Park, Appellate Court of Illinois (2011)
(963 N.E.2d 1035)
[***] It is axiomatic that pedestrians on or near active train tracks are at great risk of suffering severe,
even fatal, injuries. This court recently held that the personal danger posed by stepping in front of
a moving train is an open and obvious danger. The law generally assumes *1039 that persons who
encounter obvious, inherently dangerous conditions will take care to avoid the danger. [c] “‘The open
and obvious nature of the condition itself gives caution * * *; people are e xpected to appreciate
and avoid obvious risks.’” [***] Numerous cases indicate that death or great bodily harm is the likely
outcome of failing to exercise due care when walking on or near active train tracks. [cc] [***] There is
[also] an Illinois statute regarding pedestrian rights and duties… [***]
Breach of a statute enacted to protect human life or property, which is the obvious purpose of
this statute, is an indication that a person has acted with less than reasonable care. [c] Thus, the
precedent and statute indicate that Joho failed to act with due regard for his own safety and selfpreservation. The record indicates the Amtrak engineer triggered an audible warning whistle and
flashing headlamps before proceeding through the Edgebrook Metra station. Even if Joho mistook the
Amtrak train which was not stopping at the station for the Metra train which he intended to board,
the record indicates he failed to exercise reasonable care for his own safety when he failed to look
down the train tracks before attempting to cross the tracks in front of an approaching train.
The question we must answer is whether Joho owed a duty of care to Zokhrabov as he approached and
entered the active Edgebrook station and she stood down the tracks in the waiting area designated
for intended passengers. [***]
One justification for imposing liability for negligent conduct that causes physical harm is corrective
justice; imposing liability remedies an injustice done by the defendant to the plaintiff. An actor who
permits conduct to impose a risk of physical harm on others that exceeds the burden the actor would
bear in avoiding the risk impermissibly ranks personal interests ahead of others. This, in turn, violates
an ethical norm of equal consideration when imposing risks on others. Imposing liability remedies this
violation.
Another justification for imposing liability for negligence is to give actors appropriate incentives to
engage in safe conduct. The actor’s adoption of appropriate precautions improves social welfare and
thereby advances broad economic goals.” Restatement (Third) of Torts § 6, cmt. d (2010).

Negligence: Foreseeability in Duty and Proximate Cause Analysis (Socratic Script) | 413

*1041 Therefore, when determining whether a duty of care e xists in a particular set of circumstances,
an Illinois court will consider, among other factors, the reasonable foreseeability that the defendant’s
conduct may injure another… The

court’s other considerations in a duty analysis include

the

reasonable likelihood of an injury, the magnitude of the burden imposed by guarding against the harm,
and the consequences of placing this burden on the defendant. […]
It is a “well-established principle of tort law that the particular manner or method by which a plaintiff
is injured is irrelevant to a determination of the [defendant’s] liability for negligence.” [c] The e xistence
of a duty depends on whether there was a potential for initial contact with and thus an injury to the
plaintiff, meaning that the plaintiff was a foreseeable plaintiff. [c] (“Focusing on the potential for injury
rather than on the specifics of the harm that did occur, we find the duty problem is relatively simple.”).
“It is generally accepted that where the plaintiff’s injury resulted from the same physical forces whose
existence required the e xercise of greater care than was displayed and were of the same general sort
expectable, unforeseeability of the e xact developments and of the e xtent of loss will not limit liability.”
[c] Furthermore , while the foreseeability of injury to the particular plaintiff is properly considered in a
duty analysis, the foreseeability of the particular injury or damages are more appropriately considered
in determining the factual issue of proximate causation [c], and we must differentiate be tween these
two circumstances in order to properly apply the “foreseeability” test [c]. In this case, the trial judge
concluded it was not reasonably foreseeable and was instead tragically bizarre that when Joho crossed
in front of the oncoming Amtrak train in Edgebrook he would be struck and thrown 100 feet to where
Zokhrabov stood on the Metra customer platform.
The trial judge base d his conclusions on Cunis v. Brennan, 56 Ill.2d 372 (1974), which involved a twocar collision in suburban La Grange, Illinois, in which a passenger was ejected and thrown 30 feet to
the public parkway, where his leg was impaled on an abandoned municipal drain pipe, necessitating
amputation of the limb. *1042 Id. at 373. The passenger alleged the municipality was negligent in
leaving the broken drain there. Id. at 374. The likelihood that the collision would cause the passe nger
to be ejected and propelled 30 feet to the e xact location of a broken pipe that was 4.5 feet from one
curb and 5.5 feet from the other, and then impaled, seemed very remote and led the trial and supreme
courts to conclude that the circumstances were “tragically bizarre” and possibly even a “unique”
outcome. Id. at 377. The fact that the “misplaced drainpipe would cause any injury to someone riding
in a car 30 feet away was an example of “ ‘the freakish and the fantastic,’”” for which the village was
not liable. (Emphasis in original.) [c] (quoting Cunis, 56 Ill.2d at 376 (quoting William Prosser, Palsgraf
Revisited, 52 Mich. L. Rev. 1, 27 (1953))).
The passenger’s injury would appear to involve many variables, including the speed and weight of
the two vehicles, the angle of their collision, the weather conditions, the e xtent and direction of any
evasive maneuvers, and the passenger’s height, weight, and position within the vehicle, as well as
whether he was wearing a seatbelt. The supreme court affirmed the trial judge’s ruling that the injured
passenger had not alleged what occurred was reasonably foreseeable and therefore a basis for holding
the Village of La Grange liable for negligently breaching its duty of care. Cunis, 56 Ill.2d at 378.
Thus, Cunis may be cited generally for the proposition that there is no duty to anticipate and prevent
injuries that occur due to unusual and e xtraordinary circumstances. We do not find Cunis helpful
414 | Negligence: Foreseeability in Duty and Proximate Cause Analysis (Socratic Script)

here, however. The two-car collision, ejectment, and impalement in La Grange be ar little similarity
to the train-pedestrian collision in Edgebrook that caused a third, unconnected person to be struck
and injured. In contrast to the complex and unique combination of factors in La Grange, the potential
outcome of Joho’s conduct in Edgebrook appears to be relatively limited, since the path of the train
was fixed, the pe destrian crosswalk was marked, the train ran within the established speed limit, its
speed, weight, and force grossly exceeded any pedestrian’s, and commuters were congregating to the
side of the train tracks for the next scheduled public departure.
Cunis does not inform us about the factual circumstances in Edgebrook—it does not indicate that
what occurred at the train station was such an unusual and extraordinary combination of facts that
Joho could not reasonably foresee the pote ntial for causing injury to the waiting passengers when he
decided to cross the tracks. Cunis does not suggest that what occurred in Edgebrook was similarly
“freakish” “fantastic” or tragically bizarre. Cunis, 56 Ill.2d 372.
There are no reported cases we have found in which a pedestrian who was struck and injured by a
flying body sued the de ceased person’s estate. There are a few cases in which a pedestrian was struck
by a train or car and flung into another person. In these cases, however, the injured person sued the
railroad or automobile driver. We do not find these opinions particularly helpful because the y concern
the alleged negligent operation of a rail yard or a train or other vehicle, which is not analogous to
Joho’s alleged negligence as a pe destrian traversing train tracks. [cc] Thus, there are a few reported
cases involving flying pedestrians, but none of them are analogous to Joho’s conduct with respect to
Zokhrabov.
Accordingly, rather than relying on cases which are factually and procedurally dissimilar, we apply a
traditional duty analysis to determine whether Zokhrabov was a foreseeable plaintiff and thus owed
a duty of care. [c] (a duty of care e xists if there was a potential for initial contact with and thus an
injury to the plaintiff, meaning that the plaintiff was a foreseeable plaintiff; “[f]ocusing on the potential
for injury rather than on the specifics of the harm that did occur [makes a duty analysis] relatively
simple”).
At the outse t of this opinion, we cited cases regarding pedestrians struck by trains and a statute
regarding pedestrian rights and safety as indicators that Joho acted without due regard for his own
person and self-preservation in the active train station. We reiterate that the potential outcome of his
conduct appears to be relatively limited, since the path of the train was fixed, the pe destrian crosswalk
was marked, the train ran within the established speed limit, its speed, weight, and force grossly
exceeded any pedestrian’s, and commuters were congregating to the side of the train tracks for the
next scheduled public departure. Accordingly, we further find that it was reasonably foreseeable
that the onrushing Amtrak train would strike, kill, and fling his body down the tracks and onto the
passenger platform where Zokhrabov was waiting for the ne xt scheduled Metra departure. We find
that the trial court erred in concluding that Joho could not reasonably foresee that his negligence in
the active train station would cause injury to someone standing in the passenger waiting area.
Continuing with the four elements of a duty analysis, we find that the reasonable likelihood of injury
occurring was great given the relative force of the approaching Amtrak train, that the magnitude of
the burden imposed by guarding against the harm was insignificant, since Joho needed only to pause,
Negligence: Foreseeability in Duty and Proximate Cause Analysis (Socratic Script) | 415

look down the tracks, and then time his crossing accordingly, and that the consequences of placing
the burden on Joho would have been minimal.
*1045 We, therefore, find that the trial judge erred in holding that the defendant owed the plaintiff
no duty of care. We reverse the entry of summary judgment as to duty and remand Zokhrabov’s case
for further proceedings. We e xpress no opinion regarding the additional elements of her negligence
action, including breach, proximate causation, and damages, which are issues usually decided by a
jury. Reversed and remanded.
Note 1. The appellate court remands to allow the case to proceed to a jury on the se veral issues,
including proximate causation, but it is notable that duty failed to limit liability here. What factors
would you consider in deciding whether Joho had breached his duty to Zokhrabov? What sorts of
facts, if true, would cause you to limit the liability of his estate to compensate Zokhrabov for her
injuries?
Note 2. How would Justices Cardozo and Andrews in Palsgraf each have resolved this case, do you
think?

Expand On Your Understanding – Socratic Script: Zokhrabov v. Park

What are plaintiff’s and defendant’s main arguments, respectively?
How does the court frame the central legal question?
How does the court conduct its duty analysis? Does its analysis strike you as familiar from another
context?
Therefore, when determining whether a duty of care e xists in a particular set of circumstances, an
Illinois court will consider, among other factors, the reasonable foreseeability that the defendant’s
conduct may injure another… The

court’s other considerations in a duty analysis include

the

reasonable likelihood of an injury, the magnitude of the burden imposed by guarding against the
harm, and the consequences of placing this burden on the defendant. […]
For what purpose does the court discuss the open and obvious doctrine?
Why does the court refuse to apply negligence per se?
How does the court frame its reasoning in terms of tort law’s purposes?

Check your Understanding – Set 26

416 | Negligence: Foreseeability in Duty and Proximate Cause Analysis (Socratic Script)

Read this excerpt from a recent case in Connecticut reviewing its jury instructions and answer the
questions below.
Once you’ve gotten past factual causation, you need to address proximate cause. Proximate cause
means that there must be a sufficient causal connection between the act or omission alleged, and
any injury or damage sustained by the plaintiff.
An act or omission is a proximate cause if it was a substantial factor in bringing about or actually
causing the injury. That is, if the injury or damage was a direct result, or a reasonable and
probable consequence of the defendant’s act or omission, it was proximately caused by such an
act or omission.
In other words, if an act had such an effect in producing the injury that reasonable persons would
regard it as being a cause of the injury, then the act or omission is a proximate cause. In order to
recover damages for any injury, the plaintiff must show by a preponderance of the evidence that
such injury would not have occurred without the negligence of the defendant.
If you find that the plaintiff complains about an injury which would have occurred even in the
absence of the defendant’s conduct, or is not causally connected to this accident, you must find
that the defendant did not proximately cause that injury.
Under the definitions I have given you, negligent conduct can be a proximate cause of an injury, if
it is not the only cause, or even the most significant cause of the injury, provided it contributes
materially to the production of the injury, and thus is a substantial factor in bringing it about.
Therefore, when a defendant’s negligence combines together with one or more other causes to
produce an injury, such negligence is a proximate cause of the injury if its contribution to the
production of the injury, in comparison to all other causes, is material or substantial.

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=66#h5p-83

The proximate cause jury instructions contain references to causation in fact (as many jury instructions
do, combining both prongs in negligence’s causation analysis). Can you see where that language arises?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=66#h5p-84

Negligence: Foreseeability in Duty and Proximate Cause Analysis (Socratic Script) | 417

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=66#h5p-85

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=66#h5p-86

The ne xt case involves an intersection of three areas or doctrines: proximate cause, res ipsa loquitur
and the rescue rule. It provides helpful practice

in se eing how courts apply e
ach to the

facts,

often in light of conflicting priorities set out in the given doctrines. It may be helpful to know that
professional rescuers and public-safety responders are barred, in many jurisdictions, from bringing a
negligence action against a tortfeasor whose alleged conduct is the impe tus for the rescue or bringing
the officer to the scene of emergency where the y were injured and thus cannot usually recover in
negligence for liability for their injuries. The rationale is either that they may recover for injuries in
workers’ compensation or that they assumed the risk (and perhaps higher pay) associated with this
line of employment. This is often known as the firefighter rule (or the professional rescuer rule).
Some states have eliminated the Fireman’s Rule entirely, finding it to be an outdated concept that
is unfair to emergency responders—for instance, Oregon abolished the Fireman’s Rule by case law,
see Christensen v. Murphy, 296 Or. 610 (Or., 1982), and New Jersey abolished it by statute, see New
Jersey Public Statutes 2A:62A-21.

Clinkscales v. Nelson Securities, Supreme Court of Iowa (2005)
(697 N.W.2d 836)
1

“Danger invites rescue.” A marine out for a drink at a Davenport bar rushed to the scene of a gas
leak at a grill on the premises. While attempting to turn off two propane gas tanks, a grease fire
reignited and he was badly burned. The district court dismissed the marine ’s negligence claim against
the bar. The court held as a matter of law the marine was solely to blame for his injuries. The court
of appeals affirmed. Because a jury could find the bar’s negligence proximately caused the marine ’s

1. Wagner v. Int’l Ry., 232 N.Y. 176, 133 N.E. 437, 437 (1921) (Cardozo, J.).
418 | Negligence: Foreseeability in Duty and Proximate Cause Analysis (Socratic Script)

rescue attempt and injuries, we reve rse the district court, vacate the court of appeals, and remand for
a trial on the merits.
I. Facts
Late one Friday afternoon in the summer of 2002, James Clinkscales went to The Gallery Lounge, a
Davenport pub. Approximately fifty people were there. Clinkscales, an active-duty marine in town as
a recruiter, stationed himself at the bar ne xt to a blonde woman known only as “Dimples.” The two
began to share a pitcher of beer together.
On Fridays in the summer, The Gallery regularly grilled hamburgers outside and served them to its
customers. The grill stood directly outside of the bar on a patio ten feet away from where Clinkscales
and Dimples sat. Two tanks of propane gas placed underneath the grill fueled it. The grill was custommade and large enough to grill twenty burgers at a time.
The Gallery employed Joe Moser to grill the burgers. The first batch of burgers Moser placed on the
grill that evening were particularly greasy. When Moser flipped them over, a fire flared up on the
grill. Moser did not consider this to be a problem. All of a sudden, however, Moser heard something
abnormal—“a pop and a hiss.” A ball of fire erupted underneath the grill and engulfed the propane
tanks.
Caroline Nelson co-owns The Gallery with her husband and regularly works there. When the fire
started Nelson was standing at the patio door. Moser told Nelson to get a fire e xtinguisher. Nelson
and Moser testified Nelson and other Gallery employees made general announcements to the patrons
to leave and then one employee called the fire department. Clinkscales testified he was alerted to the
fire whe n he saw Nelson come into the bar looking for a fire e xtinguisher, but did not believe Nelson
said anything to him or anybody else about what was happening.
Nelson came back outside with a fire e xtinguisher and gave it to a patron. The patron extinguished the
flame, and Moser managed to turn the knobs on the grill to *840 “the off” position. Moser could still
smell gas escaping from the tanks, however, and Moser said aloud that he wanted to shut the tanks
off. Moser pulled the grill away from a wall to acce ss the tanks, but he found the valves were too hot
to touch. There were custome rs in the patio and adjacent bar. Clinkscales came out to the patio and
asked a man holding a fire e xtinguisher if anyone had turne d the gas off. The man told Clinkscales the
handle was too hot.
Clinkscales, who had received extensive training in fire suppression in the military, recognized the
situation was “very dangerous.” Clinkscales took off his shirt, wrapped it around one of hands, and
turned the gas off. No one asked Clinkscales to do so. He reacted instinctively:
[I]t’s like running after a kid when he runs into the street, you don’t think about it, that there’s
a car coming, you just try to grab the child, and, you know, hope for the best. You could get
killed doing it, but you just do it.
As Clinkscales was turning off the gas, the fire flared up. Clinkscales was burned on his face, neck,
chest, arms, and legs.
Negligence: Foreseeability in Duty and Proximate Cause Analysis (Socratic Script) | 419

Skin hanging from his arms, Clinkscales continued his rescue efforts by helping a frightened young
woman in the patio over a fence. A frequent patron of the bar, a man named Norm, took Clinkscales to
the hospital just as the fire department arrived.
II. Prior Proceedings
Clinkscales sued The Gallery for negligence. He claime d The Gallery owed him a duty of care as
a business invitee. Clinkscales alleged The Gallery was specifically negligent because it (1) failed
to properly design, manufacture, maintain, and operate the grill; (2) did not ade quately train its
employee s in the

use

and maintenance

of the

grill; (3) did not have enough fire-suppression

equipment and did not properly use the fire e xtinguishers it did have; and (4) did not have emergency
procedures in place ne cessary to protect its customers. In the alternative, Clinkscales also pled res
ipsa loquitur to show general negligence. Clinkscales contended that even if he could not prove the
precise cause of the mishap, the de fendants had exclusive control over the instrumentalities involved
in the fire. [fn]
The defendants filed a motion for summary judgment, which the district court granted. As a matter of
law the district court found employees of The Gallery told Clinkscales to evacuate the premises; there
was no evidence there was imminent risk to life whe n he turne d off the gas; and “a reasonable person
would not determine that the benefits of approaching a fire outweigh the risk of being seriously
burned or injured.” The district court ruled the defendants were not liable be cause (1) Clinkscales’s
injuries were caused by a known and obvious danger and (2) the defendants’ alleged negligence was
not the proximate cause of Clinkscales’s injuries. The court also concluded res ipsa loquitur was
not applicable be cause grease fires can occur without negligence. The court of appeals affirmed. It
declined to apply the rescue doctrine and held, as a matter of law, Clinkscales “suffers from a selfinflicted wound.”
III. Principles of Review [omitted]
IV. The Merits
A. The Rescue Doctrine
The rescue doctrine was forged at common law. It involves heroic people doing heroic things. The late
Justice Cardozo aptly summarized the commonsense observations about human nature that led to the
doctrine’s widespread recognition across this nation when he wrote:
Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore
these reactions of the mind in tracing conduct to its consequences. It recognizes them as
normal. It places their effects within the range of the natural and probable. The wrong that
imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer. The state that
leaves an opening in a bridge is liable to the child that falls into the stream, but liable also
to the parent who plunges to its aid. The railroad company whose train approaches without
signal is a wrongdoer toward the traveler surprised between the rails, but a wrongdoer also to
the bystander who drags him from the path…. The risk of rescue, if only it be not wanton, is

420 | Negligence: Foreseeability in Duty and Proximate Cause Analysis (Socratic Script)

born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen
the coming of a deliverer. He is accountable as if he had.
Wagner v. Int’l Ry., 232 N.Y. 176, 133 N.E. 437, 437–38 (1921) (citations omitted). That is, those who
negligently imperil life or property may not only be liable to the ir victims, but also to the rescuers.
… *842 We have consistently and liberally applied the rescue doctrine in this state for over one
hundred years. [***] Historically the doctrine arose in questions of proximate cause and contributory
negligence. [c] “In other words, did the act of the injured [rescuer] so intervene as to break the
chain of causation from [the] defendant’s negligence, or constitute such contributory negligence as
to bar recovery?” [c] The general rule was a rescuer would not be de emed to have broken the chain
of causation or charged with contributory negligence for reasonable attempts to save the life or
property of another. [c] Since the advent of comparative negligence, the doctrine has only arisen on
appeal in questions of proximate cause, i.e., when, as here, the defendant claims the rescuer’s actions
were a superseding cause of the rescuer’s injuries. See, e.g., Hollingsworth, 553 N.W.2d at 598 (holding
2

rescuer’s actions not a superseding cause).
Proximate Cause

The Gallery contends its alleged negligence was not the proximate cause of Clinkscales’s injuries. The
Gallery asserts the facts show its employees ordered patrons to leave the premises, it had called the
fire department, and at the time of the rescue attempt Moser was retrieving a rag to turn off the
propane valves. The court of appeals held as a matter of law that the rescue doctrine did not apply in
this case because “no one was in any danger until the plaintiff placed himself there.”
*843 It is well settled that questions of proximate cause are, absent extraordinary circumstances, for
the jury to decide. Iowa R.App. P. 6.14(6)(j); [c]. The line be tween what is sufficiently proximate and
what is too remote is a thin one:
“If upon looking back from the injury, the connection between the negligence and the injury
appears unnatural, unreasonable, and improbable in the light of common experience, such
negligence

would be

a remote rather than a proximate

cause. If, however, by a fair

consideration of the facts based upon common human experience and logic, there is nothing
particularly unnatural or unreasonable in connecting the injury with the negligence, a jury
question would be created.” [c]

2. In Saylor, we apparently held the rescue doctrine did not apply when the rescuer was injured saving a person who had
negligently imperiled himself. Courts and commentators alike have roundly criticized this decision. See W.C. Crais III,
Annotation, Rescue Doctrine: Negligence and Contributory Negligence in Suit by Rescuer Against Rescued Person, 4
A.L.R.3d 558, 559–60 (1965) (stating all subsequent courts, commentators, and the authors of the Restatement have
chosen not to follow Saylor, which is “the only authority” barring recovery in so-called first-party rescue cases; noting
also that “it does not seem likely that future courts will see fit to revive its teachings”); see also Sears v. Morrison, 76
Cal.App.4th 577 (1999) (severely criticizing Saylor; noting court could find “no case following Saylor”); Britt v. Mangum,
261 N.C. 250, 252 (1964) (Saylor “has not met with favor in other jurisdictions, but instead, when it has been pressed, it
has been almost invariably rejected.”); Restatement (Second) of Torts § 445 cmt. d (1965) (rejecting Saylor analysis). It
appears we overruled Saylor sub silentio in Hollingsworth. 553 N.W.2d at 598.
Negligence: Foreseeability in Duty and Proximate Cause Analysis (Socratic Script) | 421

Here we are concerned with Clinkscales’s rescue attempt, which The Gallery characterizes as a
“superseding cause” of his injuries. A superseding cause is an intervening force that “prevent[s] the
defendant from being liable for harm to the plaintiff that the defendant’s antecedent negligence is a
substantial factor in bringing about.” Id. (citing Restatement (Second) of Torts § 440 (1965) [hereinafter
Restatement]).
When a rescue attempt is involved, matters are particularly thorny and a court should be especially
wary to grant a defendant’s motion for summary judgment. [c] The rescue doctrine recognizes not all
intervening forces are superseding causes:
If the actor’s negligent conduct threatens harm to another’s person, land, or chattels, the
normal efforts of the other or a third person to avert the

threatened harm are

not a

superseding cause of harm resulting from such efforts.
Restatement § 445 (quoted in Hollingsworth, 553 N.W.2d at 598). That is, so long as the rescuer’s
response is “normal,” the negligent actor will not escape liability for the rescuer’s injuries.
What are “normal” rescue efforts? Although in Hollingsworth we loosely characterized the question of
“normal efforts” as one solely of foreseeability, see 553 N.W.2d at 598, in truth the term “normal” is not
used “in the se nse of what is usual, customary, foreseeable, or to be expected.” Restatement § 443 cmt.
b; see also id. § 445 cmt. b. Rather, “normal” (referred to in our pre-Restatement cases as “natural”) is
used as “the antithesis of abnormal, of extraordinary.” Restatement § 443 cmt. b.
“[T]he only inquiry should be whe ther the conduct of the plaintiff was ‘natural’ under the
circumstances, which is to be ascertained by a counter-chronological examination of the facts.
Here the te rm ‘natural’ must be taken to embrace those qualities of human nature le ading to
risk-taking in an effort to preserve property, to rescue other persons, or to save oneself. It
necessarily includes actions which these well recognized and familiar human feelings bring
about. Thus ‘natural’ conduct includes not only cool and well-reasoned action but also the
frantic, excited and apparently illogical movements which are too commonly exhibited by a
large percentage of human beings in moments of stress.”
“In these situations, the defendant may negligently have e xposed the person or property of
another to unreasonable risk of loss or destruction. ‘Natural’ instincts will move some pe rsons
to make efforts at rescue. The movements of the rescuer may not be well judged and may
result in harm either to the goods, to the person endangered by the defendant, or to the
rescuer himself. In any *844 such case the de fendant will be held liable, for the ‘natural’
conduct of the rescuer leaves no break or gap in the chain of causation.”
Clayton, 254 Iowa at 377–78 [c]); accord Restatement § 443 cmt. b.
What constitutes normal or natural conduct depends upon the circumstances and “is in most cases
a question to be decided by the jury.” [cc] If the jury determines the rescuer’s actions are a normal
or natural result of the defendant’s actions, the defendant’s actions were a proximate cause of the
rescuer’s injuries.

422 | Negligence: Foreseeability in Duty and Proximate Cause Analysis (Socratic Script)

We think the facts are sufficiently in conflict on the issue of proximate cause to warrant a jury
determination. The dangers of fire and gas le aks are well known to all. See Johannsen, 232 Iowa at
807 (upholding jury instruction on rescue doctrine when plaintiff rushed onto defendant’s property to
stop unattended gas leak; as plaintiff shut off valve, leak burst into flames severely injuring plaintiff);
see also Von Tersch v. Ahrendsen, 251 Iowa 115, 120 (1959) (“The danger of fire is well-known to all.”).
There is e vidence the danger was imminent in this case, or at least apparently so. See Henneman, 260
Iowa at 72 (rescue doctrine applies not only when danger is imminent, but also when “the conduct of
the rescuer is that of an ordinarily prudent person under existing circumstances”); accord Silbernagel
v. Voss, 265 F.2d 390, 391–92 (7th Cir.1959) (approving of jury instruction that was “phrased to elicit an
answer as to whether the situation … induce[d] a reasonable belief on part of [the] plaintiff that [the
victim] was in imminent peril”); Wagner, 133 N.E. at 438 (refuting view that rescue doctrine should not
apply when, in fact, rescue attempt was futile); cf. Fullerton v. Sauer, 337 F.2d 474, 482 (8th Cir.1964)
(construing Iowa law to hold rescue doctrine did not apply when “only apparent or imminent danger”
had passed).
This summary-judgment record shows customers, employees, and property of The Gallery were in
the vicinity of the fire and subse quent gas leak. While it is undisputed employees of The Gallery called
the fire department and asked some patrons to evacuate, a jury could find Clinkscales’s rescue efforts
were a normal or natural reaction under the circumstances. He may have reasonably thought danger
was imminent and, given his extensive training, his help was needed.
Exhortations to leave do not, as a matter of law, preclude liability in all cases. If a defendant sets into
course a series of events that induces a rescue attempt, the defendant does not necessarily insulate
itself from liability when it tells the rescuer to leave. In any event, in this case there is e vidence no
one effectively ordered Clinkscales to leave, and some evidence The Galle ry enlisted the help of other
customers to fight the fire. There is nothing inconsistent with an express general call to evacuate
and an implicit individual invitation to help. Even if we were to assume Clinkscales was told to leave,
however, this would be but one fact for the jury to consider in evaluating his rescue attempt.
We cannot say as a matter of law that the rescue doctrine does not apply to this case. A reasonable
jury could find Clinkscales’s rescue of Gallery employees, customers, and property was an act done in
normal or natural re sponse to the fear or emotional disturbance caused by The Gallery’s negligence.
Summary judgment on *845 the issue of proximate cause was not proper.
C. An Open and Obvious Danger is No Bar to Recovery
The district court and court of appeals applied the premises-liability law that persisted at common law
and found Clinkscales was an invitee of The Gallery at the time the fire started. Under the commonlaw trichotomy of invitees, licensees, and trespassers, an invitee is a person “who is invited to enter
or remain on land for the purpose directly or indirectly connected with business dealing with the
possessor of land.” [c] Invitees are owed the highest standard of care unde r the trichotomy: the
possessor of land is obligated to use ordinary care to keep the premises reasonably safe for invitees, to
ascertain the actual condition of the premises, and to make the area reasonably safe or give warning
of the actual condition and risks involved. Id.

Negligence: Foreseeability in Duty and Proximate Cause Analysis (Socratic Script) | 423

The parties do not ask us to re-examine the me rits of the trichotomy, which is presently one of the
most unsettled and contentious areas of Iowa law. See Sheets v. Ritt, Ritt, & Ritt, Inc., 581 N.W.2d 602,
606 (Iowa 1998) (four of nine members of court favored abolishing distinction between invitees and
licensees); see also Anderson v. State, 692 N.W.2d 360, 367–68 (Iowa 2005) (use of invitee instruction
instead of reasonable care instruction affirmed by operation of law); Alexander v. Med. Assocs. Clinic,
646 N.W.2d 74, 79–80 (Iowa 2002) (six of seven members of court declined to abolish common-law
trespasser rule). No one challenges that Clinkscales was an invitee. Only a corollary of the commonlaw premises-liability law is implicated here. The defendants argue, and the lower courts held, the
defendants owed no duty to Clinkscales as a matter of law because the fire and gas le ak constituted
a “known and obvious danger.” It is well settled that generally “[t]he possessor of land … is not liable
when the injuries sustained by a business invitee were caused by a known or obvious danger.”
Clinkscales argues the open and obvious-danger principle does not apply in this case, and we agree.
Fire and escaping gas is obviously dangerous. That is not in doubt. This is not your garden-variety
premises-liability case, however—it involves an attempted rescue. Absent imminent danger or the
appearance thereof, the rescue doctrine is not applicable. See, e.g., Weller v. Chi. & Northwestern
R.R., 244 Iowa 149, 152, 55 (1952) (without imminent danger to child rescue doctrine inapplicable);
Klunenberg, 256 Iowa at 740 (similar case involving cow in cemetery); cf. Fullerton, 337 F.2d at 482
(applying Iowa law and concluding rescue instruction not proper for injuries sustained after rescue
completed and when no further apparent or imminent danger to life or property).
In a rescue case such as this, it is axiomatic that the danger approached is obviously dangerous. See,
e.g., Hollingsworth, 553 N.W.2d at 598 (rushing into burning station wagon in victim’s garage); Clayton,
254 Iowa at 378–79 (remaining in burning apartment building to help others); cf. Kester v. Bruns, 326
N.W.2d 279, 283 (Iowa 1982) (holding rescue instruction not warranted because “it was unreasonable
as a matter of law for [the plaintiff] to risk his life to prevent the remote possibility of some harm
befalling his $90 pool cue”).
Danger invites the rescue. To rule the presence of a known and obvious dangerous condition would,
as a matter of law, negate any duty to invitee— *846 rescuers would completely eviscerate the rescue
doctrine where the rescuer happened to be an invitee of the defendant when the condition first
occurred. The “open-and-obvious-danger” rule is not absolute. See Restatement § 343A cmt. f (carving
out an exception “where the posse ssor has reason to expect that the invitee will proceed to encounter
the known or obvious danger because to a reasonable man in his position the advantage of doing so
would outweigh the apparent risk”) [c].
We have not accepted similar arguments in previous cases. For example, in Johannsen, the plaintiff saw
a gasoline spill in the de fendant’s railroad yard. 232 Iowa at 807. The plaintiff ran onto the defendant’s
property to stop the spill and suffered severe burns. He sue d the landowner for negligence and ple d
rescue. The defendant argued it did not owe the plaintiff a duty of care be cause he was a trespasser.
We he ld the plaintiff’s status as a trespasser was irrelevant because he was in a place where he had a
right to be when the danger occurred. Id. at 812. The pertinent question was not whether the plaintiff
trespassed upon the defendant’s land to effectuate the rescue, but rather whether the negligent acts
of the defendant caused a danger that proximately caused the plaintiff’s rescue attempt. Id.; see also
424 | Negligence: Foreseeability in Duty and Proximate Cause Analysis (Socratic Script)

Clayton, 254 Iowa at 378 (rescuer “not regarded as a trespasser” for entering land of another to attempt
rescue). Likewise, in the case at bar, it does not matter that Clinkscales was an invitee and that the
grease fire and gas le ak constituted an “open and obvious danger.” See Johannsen, 232 Iowa at 811
(remarking that the mere fact the plaintiff voluntarily encountered a known danger is not always
a bar to recovery). The issue is whe ther the defendant’s alleged negligent acts proximately caused
Clinkscales’s rescue attempt. If trespassers are not precluded as a matter of law from seeking recovery
in rescue cases, nor should invitees simply because the danger encountered is a “known and obvious
danger.”
D. Negligence
In the alternative, The Gallery argues that even if it owed Clinkscales a duty of care, it did not breach
that duty. The district court ruled the defendants were not negligent, as a matter of law, because
they asked patrons to leave, called the fire department, and used fire e xtinguishers. The defendants
also point out they have operated the grill for fifteen years without incident and took “precautions to
ensure the utmost safety.”
We cannot say as a matter of law that The Gallery was not negligent as alleged in Clinkscales’s
petition. Questions of negligence are ordinarily reserved for the jury, and only in extraordinary cases
is summary judgment proper. Iowa R.App. P. 6.14(6)(j) [cc] There is testimony the defendants did not
clean the grill regularly or sufficiently train their employees in grill cleaning. For example, one of the
hoses leading from the propane tanks to the grill had a small “burn hole ” in it. There is also e vidence
Moser permitted the grease fire to persist too long, at times unattended, until it became too large to
contain. A jury could also find the defendants did not keep the appropriate type of fire-suppression
equipment near the grill. A jury should decide whe ther The Gallery was negligent, and whether this
negligence caused the grease fire, subsequent gas leak, and injuries to Clinkscales.
*847 E. Res Ipsa Loquitur
Res ipsa loquitur (Latin for “the thing spe aks for itself”) is a type of circumstantial evidence. Brewster
v. United States, 542 N.W.2d 524, 529 (Iowa 1996). In Iowa, res ipsa loquitur applies in negligence cases
when
(1) the injury is caused by an instrumentality under the exclusive control of the defendant, and (2) the
occurrence is such that in the ordinary course of things would not happen if reasonable care had be en
used. [cc]
Res ipsa loquitur permits a jury to circumstantially “infer the cause of the injury from the naked
fact of injury, and then to superadd the further inference that this inferred cause proceeded from
negligence.” [c] A jury is not required to draw the inference. [c] Nor must a plaintiff “eliminate with
certainty all other possible causes or inferences.” “The jury simply weighs the circumstantial evidence
but in the end may or may not accept it as sufficient as to negligence or causation.” In Iowa, we permit
the plaintiff to plead res ipsa loquitur in addition to specific negligence as an alternate the ory of the
case. Clinkscales did precisely this in his petition. Ordinarily the two theories are submitted to the
jury together. If the jury finds for the plaintiff on a specific negligence basis, however, it should not
entertain res ipsa loquitur. [cc]
Negligence: Foreseeability in Duty and Proximate Cause Analysis (Socratic Script) | 425

For good reasons, the defendants do not deny the grill was in their exclusive control. Instead, they
claim res ipsa loquitur does not apply in this case be cause a grease fire could happen in the absence
of any negligence. Both the district court and court of appeals held the res-ipsa loquitur doctrine was
not applicable to this case because grease fires can happen in the absence of a negligent act.
We disagree. The foregoing analysis improperly frame s the que stion. The issue in this case is not
simply whether a grease fire could happen in the exercise of ordinary care, because the “occurrence”
in this case was not just a grease fire. After all, when Clinkscales approached the grill, the fire
was extinguished. The problem was that gas was leaking from the propane tanks, and it appeared
reignition of the fire might prove disastrous. Moser testified he he ard an abnormal “pop and hiss”
come from the grill before the grease fire spread to the tanks. We have repeatedly held the res-ipsaloquitur doctrine may be applicable in gas le ak cases. …see also Jay M. Zitter, Annotation, Res Ipsa
Loquitur in Gas Leak Cases, 34 A.L.R.5th 1, 14 (1995) (recognizing “it is clear that in the ordinary course
of things gas explosions will not occur, so that when one does occur, an inference of negligence may
be reasonable and justifiable”). There is nothing e xceptional about this case which indicates that this
particular gas leak would ordinarily occur in the absence of negligence. Genuine issues of material fact
exist, and therefore the district court erroneously excluded application of res ipsa loquitur from the
case. Indeed, to rule otherwise would require Clinkscales to prove the precise cause of his injuries—
*848 thus depriving him of the doctrine’s benefit. [c]
Even if we were to ignore the le aking gas, it should be note d that courts have often applied the
doctrine of res ipsa loquitur in actions against the occupant of a premises for personal injury caused
by fire—including grease

fires. See, e.g., Aetna Cas. & Sur. Co. v. Brown, 256 So.2d 716, 718

(La.Ct.App.1971) (holding res ipsa loquitur applicable to grease fire); see also 35A Am.Jur.2d Fires § 59
(2001). In the ordinary course of things, grease fires do not occur in the absence of negligence and
cannot occur unless the party in exclusive control does something or fails to do something an ordinary
person would do under the circumstances. Grease fires do not just happen.
V. Conclusion
Summary judgment was not proper. This case is remanded for a trial on the merits. Decision of Court
of Appeals Vacated; District Court Judgment Reversed; Remanded.
STREIT, Justice (specially concurring in part and dissenting in part).
I concur to the e xtent that I believe this rescuer deserves his day in court. The mere fact Clinkscales
approached an open and obvious danger is not an absolute bar to recovery; rescue clearly
presupposes danger or the appearance thereof. Cf. Johannsen, 232 Iowa at 811–12. I respectfully
dissent, however, because I believe the majority wrongly permits Clinkscales to pursue a res-ipsaloquitur theory. In doing so, the majority stretches that venerable doctrine far be yond its proper
boundaries.
As the majority correctly points out, in Iowa res ipsa loquitur applies if (1) the injury is caused by an
instrumentality under the exclusive control of the defendant, and (2) the occurrence is such that in
the ordinary course of things would not happen if reasonable care had be en used. Novak, 622 N.W.2d
at 498.
426 | Negligence: Foreseeability in Duty and Proximate Cause Analysis (Socratic Script)

Because Clinkscales has not presented any evidence of either element, I would affirm the district
court and court of appeals on this issue.
No Exclusive Control
It is conceded The Gallery had exclusive control of the grill at the time of the accide nt. On the facts
of this case, however, this is insufficient in itself to warrant a res ipsa-loquitur instruction. Exclusive
control must be shown at the time of the alleged negligence, which is not necessarily the time of injury.
[cc] As we recently stated,
The plaintiff need only show that the defendant controlled the instrumentality at the time of the
alleged negligent act…. The “exclusive control” requirement is simply another way of saying that the
injury must be traced to a specific instrumentality or cause for which the defendant was responsible
*849 … Where causes for the injury other than a defendant’s negligence are e qually probable, there
must be e vidence which will permit the jury to eliminate them. This means, for example, that a plaintiff
injured by the e xplosion of a beer bottle purchased from a retailer will be required to make some
sufficient showing that the bottle was not cracked by mishandling after it left the defendant’s plant.
Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 832 (Iowa 2000) (citations, internal quotations,
and emphasis omitted).
The record before us shows, in undisputed fashion, that several parties other than the defendants
played a role that gave rise to the state of the grill as it malfunctioned on the date of Clinkscales’s
injuries. The defendants special ordered the grill from two local men, who built it from standard parts.
After the defendants purchased the grill, the y regularly had the propane tanks switched out at a local
filing station. This filling station also periodically replaced the de vices that connected the tanks to the
hoses that led to the grill, be cause the connections on the tanks themselves would change from time
to time. Any of these parties, as well as any of the manufacturers of any of the parts they built, used, or
serviced, could have performed a negligent act leading to Clinkscales’s injurie s. The same could be said
for the patron extinguishing the fire. Without proving the cause of the fire, Clinkscales has presented
no evidence that would permit a jury to eliminate any of these equally potentially negligent parties.
Therefore res ipsa loquitur is inapplicable, and the district court and court of appeals were correct to
strike this theory from Clinkscales’s pleadings.

3

3. As a related matter, it should be remembered that res ipsa loquitur is not applicable simply because Clinkscales may not
be able to show which specific acts of negligence caused his injuries. As one noted commentator has pointed out, res
ipsa loquitur is sometimes invoked needlessly and inappropriately. If the trier can infer that the defendant was probably
guilty of one of several specific acts of negligence but cannot be sure which act it was, res ipsa [loquitur] is not properly
involved.... Although the jury might not be sure which of these negligent [acts] occurred, if it can conclude that one of
them did, then the case is merely one of ordinary circumstantial evidence.... When courts speak of res ipsa loquitur in
cases like this perhaps no harm is done, but they risk confusing the process of inferring specific negligent acts with the
process of estimating the probability of unknown acts of negligence. 1 Dan B. Dobbs, The Law of Torts § 154, at 372–73
(2001) (footnote omitted). While Clinkscales has presented a number of independent theories as to how the defendants
were negligent and should be permitted to make his case to the jury on each, res ipsa loquitur is not available simply
because there is uncertainty at this stage in the proceedings about which particular theory may win the day. The
majority’s decision falls into precisely this trap.
Negligence: Foreseeability in Duty and Proximate Cause Analysis (Socratic Script) | 427

Grease Fires Happen
Nor has Clinkscales shown the grease fire was such that in the ordinary course of things it would
not have happened if reasonable care had be en used. As the district court and court of appeals both
pointed out, grease fires commonly occur in the absence of negligence.
The classic English case of Byrne v. Boadle, 159 Eng. Rep. 299 (Ex. 1863), perhaps best illustrates the
sorts of cases in which res ipsa loquitur properly applies, and how it works. In Byrne, a barrel of flour
fell on the plaintiff, who was walking next to the defendant’s shop. 159 Eng. Rep. at 299. Although one
could readily infer the barrel came from the defendant’s shop, the plaintiff could not show precisely
how the defendant was negligent. Id. Nonetheless, the court thought the accident “spoke for itself”
and therefore held *850 the defendant was negligent, albeit in some unspecified way. Id. at 301.
The case at bar is manifestly unlike Byrne. Grease fires—unlike barrels of flour falling from the
sky—occur in the absence of negligence. Put simply, res ipsa loquitur should not apply here be cause
this is not the sort of case for which the doctrine was designed. In holding to the contrary, the majority
stretches res ipsa loquitur beyond its proper scope.
Note 1. What do you notice about the court’s narration of the facts? What do we know about the
various parties and their attributes?
Note 2. How do the majority and dissenting opinions differ with respect to their views of RIL?
Note 3. What differentiates an intervening force from a superseding cause? Does this distinction seem
to you to lead to an analytic conclusion or to require one? The Restatement (Second) of Torts § 440
defines a superseding cause as “an act of a third person or other force which by its intervention
prevents the

actor from being liable for harm to another which his antecedent negligence

is a

substantial factor in bringing about.”
The next case explores superseding cause analysis in more depth.

Chacko v. Com., Dept. of Transp., Commonwealth Court of Pennsylvania
(1992)
(148 Pa. Cmwlth. 494)
*496 This personal injury action arises from an automobile accident which occurred in the City of
Philadelphia on September 20, 1985. Saramma Chacko and Celinamma John were passengers in an
automobile operated by defendant Ruby Matthews (Matthews). Matthews, who suffers from diabetes,
lost consciousness and then control of the vehicle. The vehicle left the roadway and struck a utility
pole owned by defendant Philadelphia Electric Company (PECO). Liability was asserted against the
City on [various theories on which the trial court granted the City’s motion for summary judgment].
[***] A trier of fact could not reasonably conclude that any action of the City was a contributing

428 | Negligence: Foreseeability in Duty and Proximate Cause Analysis (Socratic Script)

factor to Plaintiffs’ injuries, given that the driver had no control over his [sic] vehicle at all.” Trial Court
Opinion at 2–3. [***]
Assuming arguendo that the

acts and omissions alleged against the

City were legal causes of

Appellants’ injuries, the proper inquiry is whether the subsequent loss of consciousness suffered by
Matthews was an intervening cause, which would not absolve the City of liability, or a superseding
cause, which would. See Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241 (1983). The Restatement
(Second) of Torts (Restatement 2d) defines a superseding cause as “an act of a third person or other
force which by its intervention prevents the actor from being liable for harm to another which his
antecedent negligence is a substantial factor in bringing about.” Restatement 2d § 440. Among the
factors to consider in determining whether a subsequent force is an intervening or superseding
cause are whe ther the force is operating independently of any situation created by the first actor’s
negligence and whether it is or is not a normal result of that situation. Restatement 2d § 442(c).
In Vattimo, the Supreme Court quoted with approval this court’s analysis of superseding causes:
[E]ven where an intervening act is wrongful it does not become a superseding cause unless, looking
retrospectively from the

harm through the

se quence

of e
vents by which it was produced, it is

so extraordinary as not to have be en reasonably foreseeable. *500 502 Pa. at 253 (quoting 59 Pa.
Commonwealth Ct. 1, 9–10 (1981)). Matthews’s loss of consciousness was indeed extraordinary and not
reasonably foreseeable. It operated independently of, and cannot be said to be a normal result of, any
situation created by the City’s purported acts and omissions.
Accordingly, we hold that the trial court did not err or abuse its discretion in concluding that the
driver’s loss of consciousness was a superseding cause of Appellants’ injuries and in granting summary
4

judgment on that basis.

For the foregoing reasons, the order of the trial court is affirmed.
Note 1. Why does the court assume, “arguendo” that the city’s alleged acts of negligence were the le gal
causes of appellants’ injuries and what do they mean in describing the alleged acts in that way?
Note 2. Do the Restatement’s factors for determining whether a force is intervening or a superseding
cause test seem straightforward to apply? Restatement 2d § 440: “Among the factors to consider in
determining whether a subsequent force is an intervening or superseding cause are whe ther the force
is operating independently of any situation created by the first actor’s negligence and whe ther it is or
is not a normal result of that situation. Restatement 2d § 442(c).
Note 3. As with proximate cause more generally, analysis to determine superseding causation exists
primarily to limit liability. Thus third parties who act and create harms due to the original tortfeasor’s
conduct do not usually sever the chain of causation: “If the actor’s negligent conduct threatens harm

4. In general, the issue of whether a given force is a superseding or intervening cause is a question to be resolved by the
fact finder. However, in cases where a jury may not reasonably differ, it is proper for the court to make a determination
of causation. Vattimo, 502 Pa. at 247, 465 A.2d at 1234; Restatement 2d § 434.
Negligence: Foreseeability in Duty and Proximate Cause Analysis (Socratic Script) | 429

to another’s person, land, or chattels, the normal efforts of the other or a third person to avert the
threatened harm are not a superseding cause of harm resulting from such efforts.” Restatement §
445. How far should this rule e xtend? What are “normal efforts”? Recall the discussion in Clinkscales
distinguishing normal from extraordinary circumstances.

Check Your Understanding – Set 27

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=66#h5p-87

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=66#h5p-88

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=66#h5p-89

Negligence: Harm
As you have se en, plaintiffs must prove all four elements of negligence—duty, breach, causation and
harm—and some kinds of harm are not cognizable, such as purely economic losses and emotional
distress absent particular qualifying circumstances. However, physical injuries and property losses
as well as the related expenses to treat or repair the damage wrought by a negligent tortfeasor’s
conduct will generally satisfy this element. A separate module on damages works through the relevant
doctrines in greater detail.
A key distinction between tort’s regimes is that plaintiffs need to prove
430 | Negligence: Foreseeability in Duty and Proximate Cause Analysis (Socratic Script)

harm with respect to

negligence and strict liability claims but they need not prove harm for several of the intentional torts,
namely battery, assault, false imprisonment, conversion and trespass to land. A plaintiff’s damages
award will be correspondingly lower when they cannot prove that those intentional torts have left
lasting harm but the liability claim does not depend on proof of harm the way it does for negligence
and strict liability claims. The invasion of the interest is the harm. Recall that for trespass to chattels,
a plaintiff does have to prove harm as part of the prima facie case for liability. For IIED, a plaintiff must
not only prove harm but a heightened level of harm: severe emotional distress.

Negligence: Foreseeability in Duty and Proximate Cause Analysis (Socratic Script) | 431

PART IV

MODULE 4: DEFENSES, PRIVILEGES,
IMMUNITIES AND LIMITATIONS
This Module focuses on various defenses, privileges, immunities, and limitations on liability. It begins
with defenses rooted in the plaintiff’s behavior before turning to defenses rooted in the defendant’s
status (such as immunity), as well as other privileges and limitations (such as self-defense, defense of
others, and statutes of limitation).

Module 4: Defenses, Privileges, Immunities and
Limitations | 433

22. Plaintiff’s Conduct
1. Assumption of the Risk
Focusing on the plaintiff’s conduct first, there are three main categories: assumption of the risk,
contributory negligence, and comparative negligence. Focusing on assumption of the risk, you will
see that it falls into two (or more) categories: express and implied assumption of the risk. Express
assumption of the risk involves waivers of liability or clear assent to the risks while implie d assumption
of the risk is often described in terms of the duty (or limits on the duty) of the defendant, based on
the plaintiff’s willing participation in something risky. There are two types of implied assumption of
the risk (primary assumption of the risk and se condary assumption of the risk), and some courts have
drilled even further into those. As you will see, these gradations pertaining to plaintiffs’ behavior will
pull us ever deeper into the world of tort law’s defenses and, in particular, the complex terrain of
comparative fault.
Keep in mind that the the ory behind assumption of the risk is somewhat like the the ory of consent,
wherever you see it substantively in other doctrines. If you decide you want to be adventurous,
according to tort law, the law should allow you to do so. But then, it also will hold that your ability
to sue for injuries incurred during the adventure will be limited in significant ways. The law has
developed these limitations on liability and related doctrines over time, and while there are many
contexts for this discussion, we will begin with one singled out by Justice Cardozo.
With apologies for the way in which tort law just continues to rain on every parade, our next case
directs our attention to the serious risks associated with injuries at amusement parks, in the context
of defenses to negligence. As a treatise on tort law writes, there are many “injuries suffered by riders
on amusement park attractions, including the traditional mechanical rides common at carnivals and
amusement parks, and the various water slides and raft rides that now proliferate at theme parks. A
patron on such a ride may be injured in a great number of ways. Cases … involve patrons injured in
the apparently normal course of a ride, in which case the de sign of the ride be comes the primary
issue. In addition, cases ofte n include some combination of allegations that rides were negligently
maintained or operated, or that patrons were not ade quately protected from negligent spectators.”
16 Causes of Action 2d 1 (Originally published in 2001) There are spinal injuries, many broken bones
and injuries, severed thumbs (why must there be so many severed thumbs?) as well as the occasional
death by drowning, electrocution, alligator attack or other catastrophic injury. The injuries are tragic,
yet thankfully, very infrequent, unless you’re at Action Park, apparently. Action Park was a notorious
amusement park and tort magnet that people who came of age in the 1980s on the East Coast
remember fondly.
Here are some sources to explore on the topic:
“Defunctland: The History of Action Park” (17-minute video):
https://www.youtube.com/watch?v=flkW-ceNvck
Plaintiff’s Conduct | 435

Trailer for the documentary “Class Action Park” (2020) (2-minute video):
https://www.classactionpark.com/
Interview with Director of “Class Action Park” (5-minute video):
https://www.youtube.com/watch?v=g1i4zA5RjaE
For further reading about Action Park if you’re curious:
https://www.njherald.com/article/20140609/NEWS/909029323
https://weirdnj.com/stories/action-park/
These sources document how dangerous Action Park was. While it was unusually dangerous—deadly,
even—it was not unique in regularly exposing visitors to considerable risks of injury in an industry
that was not thoroughly regulated. Today, other amusement parks remain open, subject to various
regulations, statutes, and of course, tort liability. If you have e ver been into an amusement park, you
know why they are still open. Either you had a great time (for at least a part of your time there) or
you observed how much fun others were having. Indeed, people pay a lot of money and brave long
lines, sunburns, loud noises, absurdly expensive sub-par food, and yes, very real risks of injury. Visitors
are cle arly flocking to parks (at least in non-pandemic times) of their own volition. (Full disclosure:
“visitors… flocking” includes this author; we have an annual family trip that has often featured a trip
to the local amusement park).
But at what point, if any, do these parks and their activities become too risky to allow? To what extent,
normatively, should the law impinge on the autonomy of thrill-seekers who may be perfectly aware of
the risks and simply wish to assume them, thank you very much? In the case of those who went to
Action Park, as you saw in the vide os linked above, the very point of the fun was the ge nuine dange r.
Tort law’s purposes, if we include the ide as of autonomy, consent and choice, are very much in tension
in the context of allowing but still regulating adventurous activities that can tend to produce frequent
or severe injuries, or both. Often, the difficult que stions will be the scope of the risk assume d and the
gradations of negligence in the conduct of those running the dangerous or risky activity.

Murphy v. Steeplechase Amusement Co., Court of Appeals of New York
(1929)
(250 N.Y. 479) (Justice Cardozo)
The defendant, Steeplechase Amusement Company, maintains an amusement park at Coney Island,
New York. One of the suppose d attractions is known as “The Flopper.” It is a moving belt, running
upward on an inclined plane, on which passengers sit or stand. Many of them are unable to keep their
feet because of the movement of the belt, and are thrown backward or aside. The belt runs in a groove,
with padded walls on either side to a height of four feet, and with padded flooring *481 beyond the
walls at the same angle as the belt. An electric motor, driven by current furnished by the Brooklyn
Edison Company, supplies the needed power.

436 | Plaintiff’s Conduct

Plaintiff, a vigorous young man, visited the park with friends. One of them, a young woman, now his
wife, stepped upon the moving belt. Plaintiff followed and stepped behind her. As he did so, he felt
what he describes as a sudden jerk, and was thrown to the floor. His wife in front and also friends
behind him were thrown at the same time . Some thing more was here, as every one understood, than
the slowly-moving escalator that is common in shops and public places. A fall was foreseen as one of
the risks of the adventure. There would have be en no point to the whole thing, no adventure about it,
if the risk had not be en there. The very name above the gate, the Flopper, was warning to the timid.
If the name was not enough, there was warning more distinct in the e xperience of others. We are
told by the plaintiff’s wife that the members of her party stood looking at the sport before joining in it
themselves. Some aboard the belt were able , as she vie wed them, to sit down with decorum or even to
stand and keep their footing; others jumped or fell. The tumbling bodies and the screams and laughter
supplied the merriment and fun. “I took a chance,” she said when asked whether she thought that a
fall might be expected.
Plaintiff took the chance with her, but, less lucky than his companions, suffered a fracture of a knee
cap. He states in his complaint that the belt was dangerous to life and limb in that it stopped and
started violently and suddenly and was not properly equipped to prevent injuries to persons who were
using it without knowledge of its dangers, and in a bill of particulars he adds that it was operated at a
fast and dangerous rate of speed and was not supplied with a proper railing, guard or other device to
prevent a fall therefrom. No other negligence is charged.
*482 We se e no ade quate basis for a finding that the belt was out of order. It was already in motion
when the plaintiff put his foot on it. He cannot help himself to a verdict in such circumstances by the
addition of the facile comment that it threw him with a jerk. One who steps upon a moving belt and
finds his heels above his he ad is in no position to discriminate with nicety between the successive
stages of the shock, be tween the jerk which is a cause and the je rk, accompanying the fall, as an
instantaneous effect. There is e vidence for the defendant that power was transmitted smoothly, and
could not be transmitted otherwise. If the movement was spasmodic, it was an unexplained and,
it seems, an inexplicable departure from the normal workings of the me chanism. An aberration so
extraordinary, if it is to lay the basis for a verdict, should rest on something firmer than a mere
descriptive epithet, a summary of the sensations of a tense and crowded moment … But the jerk, if
it were established, would add little to the case. Whether the movement of the belt was uniform or
irregular, the risk at greatest was a fall. This was the very hazard that was invited and foreseen…
Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far
as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a
spectator at a ball game the chance of contact with the ball *483 … The antics of the clown are not the
paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its
own guffaws, but they are not the ple asures of tranquility. The plaintiff was not seeking a retreat for
meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his
choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue
from such a fall. The timorous may stay at home.
A different case would be here if the dangers inherent in the sport were obscure or unobserved
(Godfrey v. Conn. Co., supra; Tantillo v. Goldstein Bros. Amusement Co., 248 N. Y. 286), or so serious as
Plaintiff’s Conduct | 437

to justify the belief that precautions of some kind must have be en taken to avert them (cf. O’Callaghan
v. Dellwood Park Co., 242 Ill. 336). Nothing happened to the plaintiff except what common experience
tells us may happen at any time as the consequence of a sudden fall. Many a skater or a horseman can
rehearse a tale of equal woe. A different case there would also be if the accidents had been so many
as to show that the game in its inherent nature was too dangerous to be continued without change.
The president of the amusement company says that there had ne ver been such an accident before.
A nurse employed at an emergency hospital maintained in connection with the park contradicts him
to some e xtent. She says that on other occasions she had attended patrons of the park who had been
injured at the Flopper, how many she could not say. None, however, had been badly injured or had
suffered broken bones. Such testimony is not enough to show that the game was a trap for the unwary,
too perilous to be endured. According to the defendant’s estimate, two hundred and fifty thousand
visitors were at the Flopper in a year. Some quota of accidents was to be looked for in so great a mass.
One might as well say that a skating rink should be abandoned because skaters sometimes fall.
*484 There is testimony by the plaintiff that he fell upon wood, and not upon a canvas padding. He
is strongly contradicted by the photographs and by the witnesses for the defendant, and is without
corroboration in the testimony of his companions who were witnesses in his behalf. If his observation
was correct, there was a defect in the e quipment, and one not obvious or known. The padding should
have be en kept in repair to break the force of any fall. The case did not go to the jury, however, upon
any such theory of the defendant’s liability, nor is the defect fairly suggested by the plaintiff’s bill of
particulars, which limits his complaint. The case went to the jury upon the the ory that negligence was
dependent upon a sharp and sudden jerk.
The judgment of the Appellate Division and that of the Trial Term should be reversed, and a new trial
granted, with costs to abide the event.
Note 1. “The timorous may stay at home” has to be one of the top 20 phrases ever published in
an opinion on tort law. Its durability may be due in part to its use of the unusual word “timorous”
(fearful) which Cardozo uses, somewhat obnoxiously, to classify people who don’t seek thrills on
roller-coasters. But it is also likely memorable for the tough love Cardozo seems to be showing
towards those who willingly seek thrills. His point is the willing cannot recover for injuries caused by
the things the y willingly did (“volenti non fit injuria”). In one sense, this merely mirrors the ide as of
bodily autonomy that undergirds the tort of battery, as you saw earlier in the quarter. It is a form of
aligning liability with the concept of consent. In another sense, however, it is creating a contract-like
principle: if you agree to subject yourself to certain risks, you must be held to that earlier agreement.
Note 2. If the rationale is that the rider of “The Flopper” assumed the risk of falling, is an unforeseen
and unexplained jerk caused by the machine the same kind of risk young Mr. Murphy assumed? Is this
more properly a question, in your mind, of duty or proximate cause? Of law, or of fact, in other words?
Note 3. How far should assumption of the risk be allowed to go, from a policy perspective? On Friday,
October 30, 2020, a news story reported that a man who had specially paid to spend time with a
leopard was mauled and severely injured:
https://fox8.com/news/man-mauled-after-paying-for-full-contact-leopard-experience-in-florida/
438 | Plaintiff’s Conduct

If we assume that strict liability is applicable to any conduct involving wild animals, does it make sense
to allow entities to “contract around” the harm the y might suffer? More generally, should waivers
of liability be allowed to limit possible tort liability, thus turning this domain into one governed by
contract, rather than tort law? Why or why not? What are the costs and benefits of allowing waivers
of liability? What alternatives exist?

Release of Liability and Express Assumption of the Risk
The ne xt two cases present different resolutions of disputes over waivers of liability for SCUBA diving
lessons. As you read them, consider what distinguishes them as well as the common threads that run
through them.

Boyce v. West, Court of Appeals of Washington, Division 3 (1993)
(71 Wash. App. 657)
This is a wrongful death action arising out of a scuba diving accident. The court dismissed the
defendants on summary judgment after finding the de cedent Peter Boyce had released them from
liability and assumed all risks associated with the scuba diving course he was taking. Iris Boyce
appeals, contending the liability releases that her son signed did not cover instructor James West
and should not be enforced as to Gonzaga University as a matter of public policy. Mrs. Boyce further
contends there are genuine issues of material fact as to whether Mr. West was grossly negligent and
whether her son assumed the risk of negligent instruction and supervision by Mr. West. We affirm.
Mr. Boyce was a student at Gonzaga University. In the spring of 1988, during his freshman year,
he enrolled in Scuba Diving 1, an introductory scuba diving course offered as a physical education
1

elective. At the beginning of the course he signe d documents entitled PADI Standard Safe Diving
Practice
s Statement of Understanding”, “PADI Medical Statement”, and “Affirmation and Liability
Release”. The latter document purported to release Down Under Divers and PADI from all liability for
negligence and to affirm Mr. *660 Boyce’s full assumption of all risks associated with the program.
Mr. Boyce successfully completed the course, taught by Down Under Divers’ employee John Miller; he
earned an A and received one credit. All dives took place in the school’s swimming pool.
During the summer, Mr. Boyce be came a certified scuba diver after completing at least four openwater dives with an independent certifying authority. Certification was a prerequisite for taking the
advanced scuba diving course (Scuba Diving 2) offered by Gonzaga. In the fall of 1988, Mr. Boyce
enrolled in Scuba Diving 2, which was taught by James West, an adjunct instructor at Gonzaga and
owner of Down Under Divers. At the first class on September 5, Mr. Boyce again signe d documents

1. PADI stands for Professional Association of Diving Instructors.
Plaintiff’s Conduct | 439

entitled “PADI Standard Safe Diving Practices Statement of Understanding”, “PADI Medical Statement”,
and “Affirmation and Liability Release”. The forms were not identical to those he had signe d for the
beginning course, but were substantially similar. This time the release name d PADI and Gonzaga
University.
By November 27, 1988 Mr. Boyce had successfully completed three of the five spe cialty dives planned
for the course. He die d that day during the fourth dive, a deepwater dive in Lake Coeur d’Alene. The
diving group consisted of instructor West, Mr. Boyce, and two other students, Steve Kozlowski and
John Sterling. The dive required the use of dry suits, so they had spent several hours the day before
learning to use the m. During the dive the divers descended 80 to 100 feet along an anchor line to
the bottom of the lake, then swam 10 to 15 feet to a wreck. There, Mr. West checked his students’ air
supplies. Concerned that they were running low on air because Mr. Kozlowski and Mr. Boyce both
registered only 800 pounds of air, one-half of the amount they started with, he signale d the group
to return to the anchor line and ascend to the surface. When they got back to the anchor line, Mr.
Kozlowski indicated he was very low on air: he had just 100 *661 pounds of air left. As Mr. West
turned to check on Mr. Sterling and Mr. Boyce, Mr. Kozlowski tugged at him, panicked over lack of
air. Mr. West immediately gave Mr. Kozlowski his alternate regulator and assisted him to the surface,
buddy breathing along the way. In the emergency, he lost sight of Mr. Boyce. Mr. West next saw Mr.
Boyce floating on the surface. Resuscitation efforts were unsuccessful; Mr. Boyce die d of air embolism
resulting from too rapid an ascent.
Iris Boyce, as personal representative of her son’s estate, sued Mr. West and Gonzaga for wrongful
death. The complaint asserts Mr. West negligently caused Mr. Boyce’s death and Gonzaga is vicariously
liable for the negligence of its agent. The defendants denied negligence and asserted as alternative
2

3

affirmative defenses the release of liability and assumption of risk provisions contained in the
documents signed by Mr. Boyce.
Mr. West and Gonzaga moved for summary judgment. Mrs. Boyce resisted the motion and submitted
parts of a deposition of Charles R. Lewis, a dive master, in which Mr. Lewis expresses his opinion that
Mr. West was negligent in his instruction and supervision of the students. Mr. Lewis did acknowledge
that with the 50 pounds of air Mr. Boyce still had whe n he reached the surface, he would have had
enough air had he continued to exhale on the way up, and that free ascents have be en made from
greater depths. By memorandum decision entered April 15, 1992, the court granted the motion for
summary judgment.

2. “I understand and agree that neither ... Gonzaga University ... nor [PADI] may be held liable in any way for any
occurrence in connection with this diving class that may result in injury, death, or other damages to me or my family,
heirs, or assigns, ... and further to save and hold harmless said program and persons from any claim by me, or my family,
estate, heirs, or assigns, arising out of my enrollment and participation in this course.” “It is the intention of [Peter
Boyce] by this instrument to exempt and release [Gonzaga University] and [PADI] from all liability whatsoever for
personal injury, property damage or wrongful death caused by negligence.”
3. “[I]n consideration of being allowed to enroll in this course, I hereby personally assume all risks in connection with said
course, for any harm, injury or damage that may befall me while I am enrolled as a student of the course, including all
risks connected therewith, whether foreseen or unforeseen; ...”
440 | Plaintiff’s Conduct

RELEASE OF LIABILITY
Mrs. Boyce first contends neither of the releases of liability signed by Mr. Boyce cover Mr. West. We
4

agree the spring release does not apply to Mr. West, and conclude the fall release does.
A release is a contract in which one party agrees to abandon or relinquish a claim, obligation or cause
of action against another party. [c] As a contract, a release is to be construed according to the legal
principles applicable to contracts. [c] Exculpatory clauses are strictly construed and must be cle ar if
the release from liability is to be enforced. [c]
The fall release, signed September 5, 1988, names only Gonzaga and PADI. Mrs. Boyce concedes it
releases Gonzaga from liability unless a public interest is involved. The release doe s not name Mr.
West, but it is undisputed that Mr. West was Gonzaga’s employee. The general rule is that a pre-injury
release of the employer from liability also releases the employee.

5

Restatement (Second) of Agency § 347(2) & comment *663 b (1958); [c]. [***] Mr. West, as an employee
of Gonzaga, was covered by the agreement releasing Gonzaga from liability for negligent harm to Mr.
Boyce.
Mrs. Boyce ne xt contends the release of Gonzaga from liability violates public policy and should not
be enforced. In Washington, contracts of release of liability for negligence are valid unless a public
interest is involved. Hewitt v. Miller, 11 Wash.App. 72, 521 P.2d 244, review denied, 84 Wash.2d 1007
(1974).
Wagenblast v. Odessa Sch. Dist. 105–157–166J, 110 Wash.2d 845, 758 P.2d 968, 85 A.L.R.4th 331 (1988) sets
forth six factors, taken from Tunkl v. Regents of Univ. of Cal., 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d
441, 6 A.L.R.3d 693 (1963), which are to be considered in determining whether exculpatory agreements
violate public policy. The court considers whether
(1) the agreement concerns an endeavor of a type *664 generally thought suitable for
public regulation;
(2) the party seeking exculpation is engaged in performing a service of great importance to
the public, which is often a matter of practical necessity for some members of the public;

4. The spring release, signed on January 20, 1988, names only Down Under Divers and PADI; it does not mention or in any
way refer to Mr. West or Gonzaga. It was executed by Mr. Boyce for the introductory scuba diving course he took in the
spring. That course was successfully completed without incident and none of the allegations in the wrongful death
complaint pertain to it. The spring release has no relevance to this lawsuit. The trial court erred by finding it protected
Mr. West from liability.
5. Mrs. Boyce argues to the contrary, citing Vanderpool v. Grange Ins. Ass’n, 110 Wash.2d 483, 756 P.2d 111 (1988). However,
Vanderpool involved a post-injury settlement and the release of an employer from vicarious liability. The case was
decided on the basis of RCW 4.22.060(2), which states:
A release ... entered into by a claimant and a person liable discharges that person from all liability for contribution,
but it does not discharge any other persons liable upon the same claim unless it so provides. That statute does
not apply in this case.
Plaintiff’s Conduct | 441

(3) such party holds itself out as willing to perform this service

for any member of

the public who se eks it, or at least for any member coming within certain established
standards;
(4) because

of the essential nature

of the service, in the economic setting of the

transaction, the party invoking exculpation possesses a decisive advantage of bargaining
strength against any member of the public who seeks the services;
(5) in exercising a superior bargaining power, the

party confronts the

public with a

standardized adhesion contract of e
xculpation, and makes no provision whereby a
purchaser may pay additional reasonable fees and obtain protection against negligence;
and
(6) the person or property of members of the public se eking such services must be placed
under the control of the furnisher of the services, subject to the risk of carelessness on the
part of the furnisher, its employees or agents. Wagenblast, 110 Wash.2d at 851–55, 758 P.2d
968.
Those factors are not present here. As noted in Hewitt, 11 Wash.App. at 74, 521 P.2d 244, “[e]xtended
discussion is not required to conclude that instruction in scuba diving does not involve a public
duty….” Accord, Blide v. Rainier Mountaineering, Inc., 30 Wash.App. 571, 574, 636 P.2d 492 (1981), review
denied, 96 Wash.2d 1027 (1982), in which the court noted: “Although a popular sport in Washington,
mountaineering, like scuba diving, does not involve public interest….”
Madison v. Superior Court, 203 Cal.App.3d 589, 250 Cal.Rptr. 299 (1988) is a factually similar case
arising out of the de ath of a student enrolled in a scuba diving course offered through the YMCA. The
Madison court applied the Tunkl factors and concluded a release signe d by the scuba student did not
involve a public interest. It then observed, in words that apply to this case as well:
Here, [decedent] certainly had the option of not taking the class. There was no practical
necessity that he do so. In view of the *665 dangerous nature of this particular activity
defendants could reasonably require the e xecution of the release as a condition of
enrollment. [Decedent] entered into a private and voluntary transaction in which, in
exchange for an enrollment in a class which he desired to take, he freely agreed to
waive any claim against the defendants for a negligent act by them. This case involves
no more a question of public interest than does motorcross racing, sky diving, or
motorcycle dirtbike riding. (Citations omitted.) Madison, 250 Cal.Rptr. at 305–06.
6

We do not find a public interest in a private school offering scuba diving instruction to qualified
students as an elective course. Upholding the release of Gonzaga does not violate public policy.
Mrs. Boyce further contends there are issues of material fact whether the defendants were grossly
negligent. If Mr. West’s negligent acts fell greatly below the standard established by law for the

6. As a private school, Gonzaga is not in a substantially different position than the YMCA in Madison or the private business
in Hewitt.
442 | Plaintiff’s Conduct

protection of others against unreasonable risk of harm, the releases are unenforceable. Blide, 30
Wash.App. at 573.
A defendant who can point out to the trial court that the plaintiff lacks competent evidence to support
an essential element of the plaintiff’s case is entitled to summary judgment because a complete
failure of proof concerning an element necessarily renders all other facts immaterial. […] Evidence of
negligence is not e vidence of gross negligence; to raise an issue of gross negligence, there must be
substantial evidence of serious negligence. Nist v. Tudor, 67 Wash.2d 322, 332 (1965). Since a release
of liability exculpates ordinary negligence, if it occurs, the plaintiff must establish gross negligence
affirmatively to avoid enforcement of the release.
Mrs. Boyce neither alleged gross negligence in her complaint, nor amended it to make that allegation,
nor provided *666 the court with any evidence supporting an allegation of gross negligence. The only
evidence of any degree of negligence presented by Mrs. Boyce consists of excerpts of the deposition
testimony of her expert, Mr. Lewis. In those e xcerpts, Mr. Lewis expresses his opinion that Mr. West
was negligent. However, as the trial court found, nothing in Mr. Lewis’ testimony supports Mrs.
Boyce’s assertion that Mr. West was grossly negligent. Mrs. Boyce’s allegation, supported by nothing
more substantial than argument, is insufficient to defeat a motion for summary judgment. CR 56(e);
Guile, 70 Wash.App. at 25. Because there was no material issue of fact as to the e xistence of gross
negligence, an essential element for avoidance of the release of liability, summary judgment was
proper.
ASSUMPTION OF RISK
Mrs. Boyce, in response to respondents’ alternative defense, also contends her son did not assume
the risk of negligent instruction and supervision. She argues assumption of the risk, whe ther express
or primary implied, bars recovery only for injuries resulting from known risks voluntarily assumed.
Kirk v. WSU, 109 Wash.2d 448, 453–54 (1987) and cases cited therein. Thus, to the extent Mr. Boyce’s
death resulted from other unknown risks, created by the defendants, Mrs. Boyce argues Mr. West and
Gonzaga remain liable. Kirk, at 455. See also Scott v. Pacific West Mt. Resort, 119 Wash.2d 484, 499 (1992).
In its memorandum decision, the trial court blurs the distinction between express assumption of the
risk and implied primary assumption of the risk and refers to “express primary assumption of the
risk.” The confusion is understandable; the entire doctrine is surrounded by confusion. … Express
assumption of risk arises out of a contract concept; implied primary assumption of risk arises out of a
tort concept. … Identical in result to a release of liability which exculpates for ordinary negligence if it
occurs, express and primary implied assumption of risk exculpate by shifting the duty of care from the
defendant to the plaintiff, thus preventing negligence from *667 occurring. Express assumption of risk
bars a claim resulting from risks actually assumed by the plaintiff; implied primary assumption of risk
bars a claim resulting from specific known and appreciated risks. Scott, at 497. One who participates in
sports impliedly assumes the risks which are inherent in the sport. Scott, at 498.
(1) Express assumption of risk. Mr. Boyce acknowledged the possibility of death from scuba diving and
assumed “all risks in connection with [the scuba diving] course … while I am e nrolled as a student
of the course, including all risks connected therewith, whether foreseen or unforeseen …” Negligent
Plaintiff’s Conduct | 443

instruction and supervision are cle arly risks associated with being a student in a scuba diving course
and are encompassed by the broad language of the contract. That Mr. Boyce may not have spe cifically
considered the possibility of instructor negligence whe n he signe d the release does not invalidate his
express assumption of all risks associated with his participation in the course. Again, the words used
by the court in Madison, 250 Cal.Rptr. at 306 (quoting from Coates v. Newhall Land & Farming, Inc., 191
Cal.App.3d 1, 9 (1987)), apply just as well to this case:
“… knowledge of a particular risk is unnecessary when there is an e xpress agreement to
assume all risk; by express agreement a ‘plaintiff may undertake to assume all of the risks of a
particular … situation, whether they are known or unknown to him.’ [cc]
As with the release of liability exculpating ordinary negligence, in the absence of a showing of gross
negligence Mr. Boyce’s express assumption of all risks associated with his enrollment in the scuba
diving course bars a claim for recovery… The summary judgment on this alternative defense was also
proper.
(2) Implied primary assumption of risk. Although the summary judgment is supported alternatively
on the grounds of release of liability and express assumption of risk, the trial court’s memorandum
decision suggests the court also relied *668 on implied primary assumption of risk as a basis for
summary judgment. This was unnecessary. In any case, Mr. Boyce’s express assumption of all risk
provides adequate grounds to support the summary judgment. We ne ed not, and do not, decide
whether implied primary assumption of the risk applies to these facts. Summary judgment was
properly granted.
We affirm.
Note 1. What does the court mean when it states: “Express assumption of risk arises out of a contract
concept; implied primary assumption of risk arises out of a tort concept”? Do you understand the way
these work in operation?
Note 2. What were the untaken precautions, if any, here? What would gross negligence have likely
involved, on these facts? Is SCUBA diving something that seems better suited to a strict liability
regime? Why or why not?
Note 3. The Tunkl factors (at p. 664 in the opinion) are judicial factors for determining whether an
exculpatory clause is void for reasons of public policy. Although the court does not technically reach
them (and thus does not methodically apply them), it does embed references to a couple of the factors
in its dicta. Look the Tunkl factors over again. How would you characterize the concerns they reflect?
Which of tort law’s purposes do they seem to support? Given that this is an area of considerable
overlap between tort and contracts, you may be able to se e ways in which contract law’s prioritization
of the parties’ intent, and promises, take precedence over tort law’s central purposes.
Note 4. Normatively, is the ruling in Boyce v. West the correct result, in your view? Why or why not?

444 | Plaintiff’s Conduct

Scroggs v. Coast Community College Dist., Court of Appeal, 4th
District, California (1987)
(239 Cal.Rptr. 916)
Maurine Scroggs, plaintiff and surviving spouse of Frank W. Scroggs, appeals a summary judgment
entered against her in her wrongful death action against Coast Community College

and Barry

Bandaruk. She contends the trial court erred in finding a release and waiver, executed by her husband
before his death, bars the action as a matter of law. We agree and reverse.
In September 1982 Frank Scroggs enrolled in a scuba diving class offered by Coast Community College,
and in that connection executed a release prepared by Coast. The following February, during a class
certification dive, Frank drowned. The release provides for the participant to waive any claims “[he
or his] heirs, representatives, executors and administrators thereof … have or may have against the
said The Coast Community Colleges [sic] or any or all of the above mentioned persons … by reason of
any accidents, illness, injury or death, or other consequences arising or resulting directly or indirectly
from participation in SCUBA diving under the auspices of the Coast Community Colleges occurring
during said participation, or any time subsequent thereto.”
Following the de ath of her husband, Mrs. Scroggs filed a complaint against Coast Community College
and Barry Bandaruk, the class instructor, alleging the de ath of her husband by drowning was a result
of defendants’ negligence. Defendants answered the complaint asserting a release as an affirmative
defense and then moved for summary judgment. On December 3, 1985, the trial court granted the
motion and judgment was entered in favor of both defendants and against plaintiff. This appeal
7

followed. [***]
Scroggs cites two California cases in support of her position that the court erred in finding the release
binding. Earley v. Pacific Electric Ry. Co. (1917) 176 Cal. 79 [167 P. 513] held a release e xecuted by an
injured party in favor of a tortfeasor did not bar a later action by the releasor’s heir. The court found
8

the wrongful death statute, section 377 of the Code of Civil Procedure, was not a survivorship statute
but rather “creates a new right of action with a different measure of damages from that which accrued
to the injured person as a result of the defendant’s wrongdoing.” (Id., at p. 81.) As such, the cause of
action could not be waived by the de cedent. [***] The effectiveness of a release to bar a wrongful
death action was recently considered in Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d
1 [236 Cal.Rptr. 181]. In Coates, the de cedent executed a release e xpressly assuming the risk of injury
and waiving liability for injuries or death resulting from Newhall’s ordinary negligence. Without any
analysis of section 377, the Coates court concluded “a decedent’s preinjury contractual assumption
of risk eliminates the possibility of tortious conduct by a potential defendant, and thus precludes a
wrongful death action, if (1) the contract is not against public policy and (2) the risk encountered by

7. Scroggs urges error on three grounds in this appeal. In the light of our holding we reach only one.
8. All statutory references are to the Code of Civil Procedure unless otherwise noted.
Plaintiff’s Conduct | 445

the de cedent is inherent in the activity in which the de cedent was engaged, or the type of risk the
parties contemplated when they executed the contract. (Id., at p. 4.)
The absence in Coates of any analysis of section 377 can only be justified by the court’s conclusion
that the e xpress contractual assumption of the risk, combined with the e xpress waiver of defendants’
negligence, constituted a complete defense to the

surviving heirs’ wrongful death action. This is

different than holding the action is barred. The failure to draw a distinction between facts giving rise
to a complete defense to a wrongful death action, and facts precluding a wrongful death action, tends
unnecessarily to obfuscate a cle ar and uncomplicated chain of decisional law concerning the nature
and effect of California’s wrongful death statute.
It is axiomatic that a plaintiff in a wrongful death action is subject to defenses which could have
been asserted against the de cedent. (See, e.g., Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 552
[contributory negligence]; Barnett v. Garrison (1949) 93 Cal.App.2d 553, 557 [assumption of the risk];
Nakashima v. Takase (1935) 8 Cal.App.2d 35, 38 [ justifiable homicide ].) But these defenses neither
preclude nor destroy the wrongful death action. If it were possible to destroy a wrongful death action
in advance, then arguably a decedent should be able to do so by a release drawn in general terms such
as the one here.
The longstanding rule is that a wrongful death action is a separate and distinct right belonging to the
heirs, and it does not arise until the de ath of the de cedent. (Earley v. Pacific Electric Ry. Co., supra,
176 Cal. at p. 81.) Since Earley the courts have consistently articulated this principle and have validated
it in a variety of circumstances. (See, e.g., Garcia v. State of California (1967) 247 Cal.App.2d 814, 816
[fact that prisoner is barred from suit alleging injuries from dangerous condition is no bar to action
for wrongful death by surviving spouse]; Blackwell v. American Film Co. (1922) 189 Cal. 689, 693-694
[prior judgment in favor of decedent for injuries does not bar later action for wrongful death]; Marks
v. Reissinger (1917) 35 Cal.App. 44, 54 [statute of limitations runs from date of death, not injury of
decedent].)
The wrongful death action was created by the Legislature, and apart from amendments affecting
damages, the statute e stablishing the action has remained virtually unchanged since its enactment in
1862. Exce ptions to the rule that the action is not derivative should be made by the Legislature, not the
courts. Any contract, intending to limit or destroy a cause of action which belongs to the heirs, should
be construed with an abundance of caution. … In the release prepared by Coast Community College,
there is no language indicating the de cedent intended to assume all risks of the activity, nor does the
release encompass a waiver of defendants’ negligence. The presence of a clear and unequivocal waiver
with specific reference to a defendant’s negligence is a distinct requirement where the de fendant
seeks to use the agreement to escape responsibility for the consequences of his negligence…
The trial court here found McAtee v. Newhall Land & Farming Co. (1985) 169 Cal.App.3d 1031 and Hulsey
v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333 to be controlling. Both cases involved claims
by plaintiffs who were injured after engaging in activities offered by the defendants. And in both the
plaintiffs had executed releases giving up their right to sue for injuries sustained. But neither case
involved a wrongful death action by an heir. The sole issue was the validity of the release under
Civil Code se ction 1668. While there is a similarity between those cases and the instant one in that
446 | Plaintiff’s Conduct

motorcycling, parachuting and scuba diving all involve risks, this similarity provides no basis for
upholding the release against Scroggs.
Furthermore
, it is of no moment that scuba diving is of little

public importance and serves no

significant public purpose. Contracts seeking to release in advance the right to bring a wrongful
death action, are not binding on the de cedent’s heirs, and there is no compelling reason to create an
exception in the case of so-called “sports risk” cases. A surviving heir of a sports enthusiast is entitled
to the same protection as the surviving heir of the victim of an automobile accident. If the de cedent
has provided the defendant with a partial or total defense, the defendant may assert it in response to
the lawsuit. The release in this case fails to provide defendants with such protection.
The judgment is reversed. Appellant is entitled to costs on appeal.
Note 1. The court distinguishes between when a release of liability (“express contractual assumption
of the risk”) may provide a defense versus when it may bar an action. Can you see the difference? Why
did it not bar the action in this case?
Note 2. Wrongful death statutes. The wrongful death statute in California controlled Mrs. Scroggs’
right to sue. What theories of tort law are served by allowing her to do so in this case? Keep in
mind this does not mean she automatically wins this case, but simply that the defendant may not use
summary judgment, with no other defenses, to defeat her claim. This is the Washington state wrongful
death statute:
RCW 4.20.010 Wrongful death—Right of action.
(1) When the death of a person is caused by the wrongful act, neglect, or default of
another person, his or her personal representative may maintain an action against the
person causing the de ath for the e conomic and noneconomic damages sustained by the
beneficiaries listed in RCW 4.20.020 as a result of the de cedent’s death, in such amounts
as determined by a trier of fact to be just under all the circumstances of the case.
(2) This section applies regardless of whether or not the death was caused under such
circumstances as amount, in law, to a felony.
RCW 4.20.020 Wrongful death—Beneficiaries of action.
Every action under RCW 4.20.010 shall be for the benefit of the spouse, state registered
domestic partner, child or children, including stepchildren, of the pe rson whose de ath
shall have be en so caused. If there is no spouse, state registered domestic partner, or such
child or children, such action may be maintained for the benefit of the parents or siblings
of the deceased.
In every such action the trier of fact may give such damages as, under all circumstances of
the case, may to them seem just.
Note 3. Wrongful Death and Tort Law’s Compensation Principle. Allowing recovery by those who
have lost loved ones due to the negligence of others is one way that tort law seeks to deter careless
Plaintiff’s Conduct | 447

behavior, to compensate for the injuries it causes, and to advance social justice, at least in some cases.
But, as you will discover if you study damages later in your course, tort law’s means of advancing
these purposes are limited: occasionally some sort of injunctive relief may be available, but usually,
the approach to making someone whole for the loss of a person consists of remuneration (or “money
damages”). Considering that financial compensation can only ever go so far in achieving this goal,
should heightened liability standards apply with respect to wrongful death actions? Why or why not?

Check Your Understanding – Set 28

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=69#h5p-90

Implied Assumption of the Risk
Landings Ass’n, Inc. v. Williams, Supreme Court of Georgia (2012)
(291 Ga. 397)
*397 In The Landings Association, Inc. v. Williams, 309 Ga.App. 321, 711 S.E.2d 294 (2011), the Court of
Appeals held that the trial court properly denied in part motions for summary judgment brought by
The Landings Association, Inc., and The Landings Club, Inc., finding that a question of fact remained
as to whether The Landings entities failed, pursuant to the law of premises liability, to take reasonable
steps to protect Gwyneth Williams from being attacked and killed by an alligator in the planne d
9

residential community and golf club owned and/or managed by The Landings entities. We granted
certiorari to determine whether the Court of Appeals erred in reaching this conclusion. Because the
record shows that Williams had equal knowledge of the threat of alligators within the community, we
reverse.
As is relevant to our holding, the facts, in the light most favorable to Williams, show that, at the time

9. The Landings Association owns and manages the common areas of the residential area, and The Landings Club owns
and manages the golf course.
448 | Plaintiff’s Conduct

of the alligator attack, Williams was house-sitting for her daughter and son-in-law at The Landings,
a planned residential development with a golf course located on Skidaway Island off the Ge orgia
coast. Before The Landings was developed, the land within and surrounding its boundaries was largely
marsh, where indigenous alligators lived and thrived. In order to develop the property, The Landings
entities installed a lagoon system which allowed enough drainage to create an area suitable for
a residential development. After the project was completed in the 1970s, the indigenous alligators
subsequently began to move in and out of The Landings through its lagoon systems.
Although alligators inhabited the area of The Landings before and after its establishment, no person
had ever been attacked until the night of October 5, 2007, when Williams, who was 83 at the time,
*398 went for a walk near one of the lagoons near her daughter’s home some time after 6:00 p.m.
10

The following morning, Williams’ body was found floating in the lagoon. Williams’ right foot and both
forearms had been bitten off. Later, an eight-foot alligator was caught in the same lagoon, and, after
the alligator was killed, parts of Williams’ body were found in its stomach.
The record shows that, prior to the attack, Williams was aware that the property was inhabited by
alligators. Williams’ son-in-law testified that, on at least one occasion, he was driving with Williams on
property in The Landings when he stopped the car to allow Williams to look at an alligator. Williams’
son-in-law also testified that Williams was, in fact, aware that there were alligators in the lagoons at
The Landings and that he believed that Williams had a “normal” respect for wild animals. When asked
whether he had ever discussed how to behave around wild alligators with Williams, her son-in-law
responded: “No. There was never—quite frankly, there was never any reason to. I mean she was an
intelligent person. She would—there was no question in my mind that—I guess I have to answer that
as it’s not like talking to a five year old child … stay away from alligators.” In addition, Williams’ son
recalled a similar instance whe n he stoppe d the car to allow his mother to look at an alligator. At that
time Williams mentioned that she did not like alligators and did not want to go anywhere near them.
Generally, in premises liability cases,
[c] to survive a motion for summary judgment, a plaintiff must come forward with
evidence that, viewed in the most favorable light, would enable a rational trier of fact
to find that the defendant had actual or constructive knowledge of the hazard. At
that point, the burden of production shifts to the defendant to produce e vidence that
the plaintiff’s injury was caused by his or her own voluntary negligence (intentional
disregard of a known risk) or causal negligence (failure to e xercise ordinary care for
one’s personal safety). If the defendant succeeds in doing so, the burden of production
shifts back to the plaintiff to come forward with evidence that creates a genuine
dispute of fact on the question of voluntary or causal negligence by the plaintiff or
tends to show that any such negligence resulted *399 from the defendant’s own actions
or conditions under the defendant’s control. [cc]

10. One side of the lagoon was a park-like area owned by The Landings Association, and the other side of the lagoon was
part of the golf course owned by The Landings Club.
Plaintiff’s Conduct | 449

Furthermore, it must be remembered that
“‘[t]he

true

ground of liability is the

proprietor’s superior knowledge

of the perilous

instrumentality and the danger therefrom to persons going upon the property. It is when
the perilous instrumentality is known to the owner or occupant and not known to the
person injured that a recovery is permitted.’ [cc] One who is familiar with the premises
cannot rely for recovery upon the negligence of the defendant in failing to correct a patent
defect where such party had equal means with the defendant of discovering it or equal
knowledge of its existence.” [cc]
[***] In this case, testimony shows that Williams was aware that wild alligators were present around
The Landings and in the lagoons. Therefore, she had knowledge e qual to The Landings entities about
the presence of alligators in the community. In addition, the record shows that Williams knew that
the wild alligators were dangerous, saying herself that she would not want to be anywhere ne ar them.
Nonetheless, Williams chose to go for a walk at night near a lagoon in a community in which she kne w
wild alligators were present. This act undisputably shows that Williams either knowingly assumed the
risks of walking in areas inhabited by wild alligators or failed to exercise ordinary care by doing so.
Under these circumstances, the trial court should have granted the motions for summary judgment
brought by the Landings entities regarding Williams’ premises liability claims.
The dissent, like the Court of Appeals, attempts to avoid this conclusion by arguing that summary
judgment for The Landings is precluded because there is no “competent evidence that the de cedent
knew there were alligators over seven feet in size living in the community or living in the lagoon in
which [Williams’] body was found.” While there is no doubt that Williams’ death was a tragic *400
event, Williams was not incompetent. A reasonable adult who is not disable d understands that small
alligators have large parents and are capable of moving from one lagoon to another, and such an adult,
therefore, assumes the risk of an alligator attack when, knowing that wild alligators are present in a
community, walks near a lagoon in that community after dark.
Judgment reversed.
BENHAM, Justice, dissenting.
I write be cause I respectfully disagree with the majority’s opinion reversing the decision of the Court
of Appeals to allow this premises liability case to go to a jury. The majority reasons that appellees’
claims cannot survive summary judgment because the de cedent had equal knowledge, as compared
to appellants, that there were alligators in and around The Landings community. Premises liability
cases, however, cannot be resolved on summary judgment unless “the evidence is plain, palpable, and
undisputed.” [cc] In this case, the Court of Appeals was correct when it affirmed the trial court’s denial
of summary judgment to appellants because the evidence was not plain, palpable, and undisputed.
Notably absent from the majority’s opinion are facts which, if construed in appellees’ favor, require the
denial of appellants’ motions for summary judgment. For example, the Landings Association had an
advertised policy that it removed from the 151 lagoons in the community alligators which were se ven

450 | Plaintiff’s Conduct

11

feet long or larger and/or alligators which were aggressive toward humans or pets; the appellants
did not patrol or inspect the lagoons in order to remove large or aggressive alligators according to
its policy, but rather relied on residents and employees to report said animals; and appellants did not
post signs near the lagoons warning guests about alligators. [c] An expert opined that the over eight
foot long, 130 pound alligator that attacked the de cedent had likely been in the lagoon where the
decedent’s body was found for some time be cause such mature alligators tend to be territorial and
nest. There was also evidence in the record that the de cedent called for help during the attack, but
that appellants’ security forces, which were not trained in *401 dealing with alligators, responded to
the wrong location and then stopped investigating, assuming that the sounds in question were bird
calls. While there was some testimony that the de cedent had seen at least one alligator standing on
the side of the road in The Landings, the Court of Appeals concluded in its de novo review that there
was no “competent evidence” that the de cedent knew there were alligators over seven feet in size
living in the community or living in the lagoon in which her body was found. [c]
[I]ssues of negligence, contributory negligence and lack of care for one’s own safety
are not susceptible of summary adjudication… but should be resolved by trial in the
ordinary manner…. Where reasonable minds can differ as to the conclusion to be reached
with regard to questions of whether an owner/occupier breached the duty of care to
invitees and whether an invitee e xercised reasonable care for personal safety, summary
adjudication is not appropriate. [***]
Based on the facts presented at the time of summary judgment in this case, reasonable minds could
differ as to the essential elements of appellees’ premises liability claim. Indeed, there are very specific
questions in this case that must go to a jury: whether decedent knew that large and aggressive
12

alligators were living on the premises and in the lagoon in which her body was discovered;

and

whether appellants exercised reasonable care in inspe cting and keeping the premises safe from
alligators—in particular, alligators that were over seven feet long and alligators that were aggressive
toward humans and pets as per appellants’ removal policy. Rather than allowing this evidence to
be reviewed by a fact-finder, the majority opinion bars appellees’ premises liability claim simply
because the de cedent once observed an alligator standing on the roadside. Such a result disregards
all the other factual circumstances in the case and is not in keeping with our jurisprudence. [***]
Accordingly, I would affirm the judgment of the Court of Appeals and allow the premises liability claim
to be trie d before a jury. *402 I am authorized to state that Chief Justice Carley and Presiding Justice
Hunstein join in this dissent.
Note 1. Assumption of the risk arguments often hinge on a balance of what the plaintiff did and
what they knew. Thus courts inquire into the plaintiff’s conduct but also their likely knowledge.
Do you agree with the majority opinion here that the fact that Mrs. Williams knew there could be
alligators in the lagoon means that “she had knowledge e qual to The Landings entities about the
presence of alligators in the community”? What do you think of the court’s reasoning regarding

11. Alligators over eight feet long are more prone to be aggressive toward and/or attack humans.
12. See, e.g., George v. U.S., 735 F. Supp. 1524, 1535 (M.D.Ala.1990) (fact that appellant knew there were alligators in a
recreational swimming pond did not mean appellant was aware of the eleven-foot alligator that attacked him).
Plaintiff’s Conduct | 451

Williams’ statement that “she would not want to be anywhere ne ar them”? The court argues that this
demonstrates that she kne w alligators were dangerous and chose to take the risk of encountering
them anyway, intentionally disregarding a risk or failing to exercise ordinary care for her safety. How
might you challenge this line of reasoning if representing the decedent?
Note 2. The majority opinion uses ableist language in characterizing the decedent as having assumed
the risk: “A reasonable adult who is not disable d understands that small alligators have large parents
and are capable of moving from one lagoon to another, and such an adult, therefore, assumes the
risk of an alligator attack when, knowing that wild alligators are present in a community, walks near a
lagoon in that community after dark.”
Can you see how it might serve a substantive purpose here? Does it seem effective, and whether or
not it is, does it seem necessary?
Note 3. Why does the majority ignore the facts the dissent raises such as knowledge of larger alligators
being aggressive, alleged failures to warn, or the se curity detail’s lack of training in alligator attacks?
Does it seem credible that a human cry for help during an alligator attack would sound like bird calls?
Premises liability is one of the areas in which defendants owe limited duties where the duty to act is
bound up with the conduct that the law will require. Which opinion strikes the better balance, in your
view, between determining this as a question of limited duty and implied assumption of the risk (as
the majority does) versus as a question on which the defendant’s breach of care ought to have be en
considered, along with the subjective knowledge of the decedent?
Note 4. Who gets to say what counts as common knowledge? Does it matter whether the premises
liability concerns local residents or tourists?
See

https://www.washingtonpost.com/news/morning-mix/wp/2016/08/23/tourists-warned-

disney-of-alligator-minutes-before-toddler-was-killed-report-says/ (The family did not pursue legal
action.) Not all courts would come out the same way on similar facts: as has likely been increasingly
clear in your study of tort law, tort law varies a great deal by jurisdiction.
In George v. U.S., 735 F. Supp. 1524, 1535 (M.D. Ala. 1990), the court went the other way, finding no
assumption of the risk merely because the victim of an alligator attack on park maintained by the
United States government knew alligators were present:
“Mr. George testified that he kne w alligators were present in Open Pond but that he
was unaware that there were any the size of the reptile that took his arm. This Court
finds by a preponderance of the e vidence that Mr. George was not aware that an alligator
approximately 11 feet in length inhabited the Open Pond waters. Furthermore, this Court
finds that Mr. George had no knowledge of the danger presented by his entering the
swimming area. Thus, this Court finds that Mr. George did not assume the risk of his injury
by entering the swimming area on July 26, 1986, notwithstanding his knowledge of the
presence of alligators in Open Pond.”
On the one hand, you have se en that tort law makes distinctions all the time on the basis of factual
differences. Perhaps the size of the alligator should matter normatively to liability for attacks it causes.
452 | Plaintiff’s Conduct

On the other hand, how well does it serve tort law’s various purposes if litigation over serious injuries
(or fatalities) such as these hangs on what seem like fairly trivial differences? Or if not trivial (three feet
of alligator is actually not trivial) differences, differences that seem rooted in something other than
sound legal principles?

Kalter v. Grand Circle Travel, U.S. Dist. Court, Central District of
California (2009)
(631 F. Supp.2d 1253)
Grand Circle is a tour operator that arranges vacation packages to destinations around the world. Jill
Kalter (“Kalter”) purchased a Grand Circle “Amazon River Cruise & Rain Forest” tour, along with an
optional post-trip extension to visit the Inca ruins at Machu Picchu. Prior to departing on her trip,
Kalter received from Grand Circle an itinerary of the Machu Picchu trip extension (the “Itinerary”),
which stated that her group would visit Machu Picchu on two consecutive *1256 days, and that on the
second day she would have the option of remaining with a guide or e xploring the ruins on her own.
The Itinerary also stated: “[t]hese Inca sites are not like ancient squares in Europe; they are spread out
over steep hillsides with large stone ste ps and une ven surfaces…. In the ruins, there are no handrails
some places where you might like one.” Kalter received and read the itinerary prior to departing on
her trip. In addition, the tour guide, Jesus Cardenas, distributed a map of Machu Picchu to the tour
13

participants prior to entering the park. The map includes a section entitled “Visit Regulations,” which
states, among other things, “Do not climb the walls,” and “Follow only designated routes according to
arrows.”
It was raining on both days Kalter was at Machu Picchu. The first day, she remained with Cardenas
and walked on the stone paths. The se cond day, she opte d to explore on her own, and ventured off
the established paths. Cardenas states that he gave verbal warnings to the group to use caution due
to wet and slippery conditions. Kalter states that she did not he ar Cardenas give the se warnings, but
that she “has no reason to doubt” that he did so. Kalter went to an area known as the “terraces,”
filled with vertical rock walls that contain small stone protrusions called “floating steps.” [***] Some
of these terraces are along paths color-coded by length, and no paths at Machu Picchu require
traversing floating steps. Approximately one hour after venturing out on her own, Kalter became lost
and disoriented, and was concerned about connecting with her group so that she would not miss
the train. In an effort to get a better view of where she was, Kalter stepped up onto the bottom two
floating steps of a vertical wall. Kalter did not think this was a dangerous act. As a result, Kalter fell
14

and suffered serious injuries, and is now a quadriplegic.

Grand Circle now moves for summary judgment on the grounds that: (1) Plaintiffs’ claims are barred

13. The map is produced by the Peru National Institute of Culture, not Grand Circle.
14. It is unclear exactly how Kalter fell, as she does not remember and there were apparently no witnesses. (Kalter Dep.
12:22–13:5.)
Plaintiff’s Conduct | 453

under the doctrine of primary assumption of the risk; (2) Grand Circle had no duty to warn Kalter
*1257 of the dangerous nature of the floating steps because it was open and obvious; and (3) Grand
Circle is not liable for the actions of Cardenas because he is an independent contractor.
A. Primary Assumption of the Risk Bars Plaintiffs’ Claims.
“The question of the e xistence and scope of a defendant’s duty of care is a legal question which
depends on the nature of the sport or activity in question and on the parties’ general relationship
to the activity, and is an issue to be de cided by the court, rather than the jury.” Knight v. Jewett, 3
Cal.4th 296, 313 (1992). The doctrine of primary assumption of the risk applies where “the de fendant
owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.”
[c] To determine if primary assumption of the risk applies, courts look to the nature of the activity,
and the parties’ relationship to that activity. [cc] The question turns on whether the plaintiff’s injury is
within the “inherent” risk of the activity. [c] A risk is inherent to an activity if its elimination would chill
vigorous participation in the activity and thereby alter the fundamental nature of the activity. Knight,
3 Cal.4th at 318. Accordingly, “the doctrine of primary assumption of risk applies where ‘conditions or
conduct that otherwise might be vie wed as dangerous often are an integral part’ of the activity itself.”
[***] When primary assumption of the risk applies, a defendant is only liable for a plaintiff’s injuries “if
the defendant ‘engages in conduct so reckless as to be totally outside the range of the ordinary activity
involved in the sport or activity’ or increases the inherent risk involved in the activity.” If, on the other
hand, “the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter
a known risk imposed by the defendant’s breach of duty,” the doctrine of secondary assumption of the
risk applies, which is analyzed under comparative fault principles. Knight, 3 Cal.4th at 315. In such a
case, “the trier of fact, in apportioning the loss resulting from the injury, may consider the relative
responsibility of the parties.” Here, Kalter was engaged in the activity of hiking on uneven terrain
amongst ancient ruins. Inherent in this activity is the risk that one will fall and *1258 become injured.
(See Andia, 2007 WL 4258634, at *5, 2007 U.S. Dist. LEXIS 88247, at *15) (holding that “falling is always
a risk when engaging in any kind of strenuous hike on steep and uneven terrain”).
The Itinerary Kalter received prior to the tour informed her that the Inca sites at Machu Picchu “are
spread out over steep hillsides with large stone ste ps and une ven surfaces.” (Itinerary 65.) Eliminating
tour participants’ access to these large stone ste ps and une ven surfaces in an attempt to protect
against the risk of falling would eliminate the ability to view the Inca sites, and thus “alter the
fundamental nature of the activity.” See Knight, 3 Cal.4th at 318, 11 Cal.Rptr.2d 2, 834 P.2d 696. In other
words, “hiking across uneven and challenging natural terrain is an inherent risk of hiking to [the
ancient ruins at Machu Picchu], without which the general public would be substantially deprived of
viewing the … phenomenon.” See id. Moreover, as discussed further below, Kalter did not fall while
engaging in the activities condoned by Defendants—she chose to le ave the e stablishe d stone pathway,
and further endangered herself by stepping onto the floating steps. Accordingly, the Court finds that
primary assumption of the risk applies to Kalter’s injuries from falling while hiking at Machu Picchu.
Therefore, Grand Circle is only liable for only liable for Kalter’s injuries “if [it] engage[d] in conduct so
reckless as to be totally outside the range of the ordinary activity involved in [hiking amongst ancient
ruins on uneven terrain] or increase[d] the inherent risk involved in the activity.” [***]

454 | Plaintiff’s Conduct

Plaintiffs argue that Grand Circle breached its duty to Kalter by “encouraging and permitting her to
roam the ruins of Machu Picchu on her own, then directing her to an area unknown, i.e. which was
not explored with her Trip Leader the prior day, and given the conditions of that day, was dangerous
and confusing.” Kalter was an experienced hiker, and prior to electing to explore the ruins on her
own instead of remaining with Cardenas, she had read Grand Circle’s Itinerary informing her that she
would encounter steep hillsides, large stone ste ps, and une ven surfaces. She also received the map
from Cardenas which stated “Do not climb the walls” and “Follow only designated routes according to
arrows.” Moreover, Plaintiffs do not dispute that visitors to Machu Picchu often wander the ruins on
their own, and that park regulations do not prohibit them from doing so. In addition, Plaintiffs provide
no evidence that Cardenas or Grand Circle kne w Kalter would attempt to climb the floating steps, and
do not dispute Cardenas’ statement that Kalter “never asked me if she could climb down from or up to
any terraces. At no time did I tell Ms. Kalter that she should climb down or up the series of terraces,
and at no time did I tell Ms. Kalter that it would be okay for her to climb up or down the stone te rrace
walls or on the ‘floating steps.’” [c]
Given these undisputed facts, Grand Circle’s act of allowing Kalter to explore on her own areas she
had not been to with Cardenas was not “so reckless as to be totally outside the range of ordinary
activity” involved in the e xcursion, nor did it increase the inhe rent risk of falling and sustaining injury
involved in hiking in this region. [cc] The Court also notes that other participants in the tour stated
that Cardenas was “outstanding and the accident was not at all [his] fault. And of course, [Kalter] fell
on a day of totally independent activities.” *1259
Moreover, even if Grand Circle or Cardenas erred in estimating Kalter’s ability to hike on her own
across the

une ven terrain at Machu Picchu in rainy weather, “an instructor’s assessment

errors—either in making the necessarily subjective judgment of skill level or the equally subjective
judgment about the difficulty of conditions—are in no way ‘outside the range of the ordinary activity
involved in the sport.’” [c]; see also Andia, 2007 WL 4258634, at *5, 2007 U.S. Dist. LEXIS 88247, at *16
(holding that tour guide’s “decision to allow Plaintiff to return to the Rangers station alone [during a
guided hike to a lava flow] … at most constituted ‘assessment errors,’ but these ‘subjective judgments
about the difficulty of the conditions were ‘in no way so reckless as to be totally outside the range of
the ordinary activity involved’ in the activity of lava hiking”).
Plaintiffs have submitted a declaration by Alexander Anolik, a travel and tourism attorney, stating that
Cardenas “failed to insist, explain the ne ed for or put together a ‘buddy system’ whereby Ms. Kalter
would not have to be in this strange and dangerous area by herself,” and contending that his conduct
of allowing Kalter to explore on her own fell below the standard of care in the travel industry.
Anolik submits no case

law or any other information to suggest that such conduct falls below

a standard of care, or that any other tour companies or guides employ such practices. (See
Supplemental Cardenas Decl. ¶ 3, stating that he is unaware of any other tour guide at Machu Picchu
that requires a buddy system.) Further, as explained above, allowing tour participants to hike on their
own, even off trail on uneven terrain, is not so reckless as to be totally outside the range of the
ordinary activity involved in hiking. As such, the Court finds Anolik’s bare assertions insufficient to
create a triable issue of fact regarding whether Defendants’ conduct was so reckless as to be totally
outside the range of the ordinary activity or otherwise increased the inherent risk involved in the
Plaintiff’s Conduct | 455

activity of hiking amongst ancient ruins in an undeveloped area. Accordingly, Grand Circle is not liable
for Kalter’s injuries under the doctrine of primary assumption of the risk.
B. Grand Circle Had No Duty to Warn Kalter of the Open and Obvious Danger Posed by the Wet Floating
Steps.
“It is established law, at least in the e xercise of ordinary care, that one is under no duty to warn
another of a danger equally obvious to both.” [***] Here, it was obvious to both Kalter and Cardenas
that it was raining, and Kalter admitted at her deposition that she “kne w [the stones] were slippery
and wet.” Moreover, the danger of slipping and falling from stepping on a small wet stone step
protruding from a vertical wall is undoubtedly an obvious danger. Plaintiffs conclusorily state that
“there are genuine issues of material fact regarding whether the conditions that caused Ms. Kalter’s
injuries were open and obvious,” but offer no evidence to support this claim. Indeed, Kalter admits
that it was “raining on and off,” that she “kne w the rocks could be slippery”, and that before she
started climbing she could see the third step was missing. Kalter offers no evidence to suggest that
she believed climbing the floating steps was allowed or common, or that she saw anyone e lse climbing
them. Further, it appears that *1260 the danger of climbing the steps was obvious to other members of
Kalter’s tour; when asked whether he saw anyone climbing the steps, one member responded, “Good
Lord. Someone, probably the guide, said that the Indians might have use d them.” [***] Kalter also
testified at her deposition that she “thought there would be some risk in climbing up the floating
steps.” Further, Plaintiffs offer no evidence that the risk of slipping on the wet floating steps was any
less obvious to Kalter than to Cardenas, especially in light of the fact that Kalter had walked on stone
with Cardenas the previous day and noted that the stone was “slippery at times.”
Plaintiffs also cite case law holding that “although the obviousness of a danger may obviate the duty
to warn of its existence, if it is foreseeable that the danger may cause injury despite the fact that it
is obvious (e.g. when necessity requires persons to encounter it), there may be a duty to remedy the
danger, and the breach of that duty may in turn form the basis for liability.” [***] While a landowner
may be required to remedy a dangerous but obvious condition on his property, the situation differs
with regards to a tour guide and tour company, where, as here, the dangerous condition is neither on
the guide or company’s property nor within their control. [***]
Moreover, numerous courts have held that tour companies and guides have no duty to warn of
obvious dangers their customers encounter on trips. See, e.g., Tei Yan Sun v. Governmental Auths. of
Taiwan, 2001 U.S. Dist. 1160, at *31–32 (finding no liability for failure to disclose dangers of “severe
undertow, high waves, and strong surf” at beach, and noting that travel agents have no duty to disclose
obvious dangers to travelers) [c]; Passero v. DHC Hotels & Resorts, 981 F.Supp. 742, 744 (D.Conn.1996)(“A
tour operator may be

obligated, under some circumstances, to warn a traveler of a dangerous

condition unknown to the traveler but known to it…. This doctrine applies to situations where a tour
operator is aware of a dangerous condition not readily discoverable by the plaintiff. It simply does not
apply to an obvious dangerous condition equally observable by plaintiff.”) … Plaintiffs cite no cases in
which courts have found tour companies or guides liable for failing to warn of or remedy open and
obvious dangers.

456 | Plaintiff’s Conduct

Accordingly, the Court finds that Grand Circle had no duty to warn Kalter that the floating steps might
be slippery and dangerous in the rain, as this danger was readily observable.
C. Since Neither Grand Circle Nor Cardenas Are Liable for Kalter’s Injuries, the Court Need Not Reach
the Issue of Whether Cardenas Is an Employee or Independent Contractor.
As explained above, neither Grand Circle nor Cardenas are liable for Kalter’s *1261 injuries because
the doctrine of primary assumption of the risk applies, and because neither had a duty to warn her of
the open and obvious danger of falling while climbing wet stone steps protruding from a vertical wall.
Further, Plaintiffs do not argue that Cardenas’ actions after Kalter fell caused or contributed to her
injury. As such, whether Cardenas is Grand Circle’s employee or an independent contractor does not
affect Grand Circle’s liability, and the Court need not reach the issue.
For the foregoing reasons, the Court GRANTS Grand Circle’s Motion for Summary Judgment.
Note 1. Does Kalter’s conduct strike

you as risky? If she

had not suffered catastrophic injuries,

would your answe r be the same ? Does your answer—regarding her conduct’s reasonableness—change
depending on why she climbe d the floating steps? Recall that she was looking for her group, from
which she had be come disconnected. Would it make a difference if she were climbing them a) to
retrieve an errant toddler who was in danger? b) to retrieve an errant pet chihuahua who was in
danger? c) to get a better photo, citing the desire to take an “instaworthy” snap for her profile?
Note 2. In cases in which claims arise in particular cultural contexts different from those in run-ofthe-mill torts cases, should cultural norms be taken into account? What do you make of Kalter’s being
a tourist here and ignoring the advice not to climb the floating steps? Should she have known better,
or is her foreignness partly an explanation for her decision to climb the steps? If the floating steps
were considered sacred territory, would this be information that U.S. tort law should or should not
consider in assessing the reasonableness of her conduct?
For many years, tourists were injured climbing Uluru—formerly known as Ayers Rock—in Australia and
at least 37 people die d climbing it. The challenges came due to dangerous winds, slippery rock faces,
and excessive he at (with summer temperatures as high as 116 Fahrenheit). Following the de ath of a
tourist in 2018, authorities decided to close it for good. For years, the Anangu, traditional owners of
the land, have urged visitors not to climb the rock, both because of the dangers associated with the
climb and because of the spiritual significance it holds in their culture. https://www.bbc.com/news/
world-australia-50151344
If indigenous culture and wisdom militates against a particular practice (such as climbing certain parts
of the landscape) on lands it has traditionally owned, should that guidance be relevant to or even
dispositive of the question of whether the practice is reasonable? Why or why not?
Note 3. Primary and Secondary Implied Assumption of the Risk. Do you understand the difference
between these two forms of assumption of the risk? Some commentators have treated the se cond
form as effectively obsolete be cause of comparative fault, in which the court weighs the conduct of
plaintiff and defendant both. Articulate the standard, or rule, associated with each of the kinds of

Plaintiff’s Conduct | 457

assumption of the risk. What do you observe about them, in terms of what needs to be shown, and
who will decide the issues?
The ne xt case shows how concepts of vicarious liability and implied assumption of the risk can
interact. While the court did not find a relationship giving rise to vicarious liability, you can see
that the concept stretches beyond merely employer/employee. In Wall v. Gill, the issue is whe ther a
beauty school is liable for the torts of its students as well as whether patrons of beauty schools (which
often charge lower price s due to the fact that the be auticians-in-training are still in training) have
assumed the risk.

Wall v. Gill, Court of Appeals of Kentucky (1950)
(311 Ky. 796)
The appellant conducts a college of beauty culture where instruction is offered to those desiring
to become be auticians. It is after a successful completion of the course at such a college and the
passing of the e xamination required by the State that a person qualifies as a beautician. In order
that the students in these schools may receive practical experience, they are permitted to serve the
public before the y are licensed. According to the rules and regulations of the Kentucky State Board
of Barber and Beautician Examiners, a school is not permitted to perform services for the public for
a profit. The prices charged are limited to the costs of materials and supplies and are regulated by
the Board. A regulation of the Board prohibits a registered beautician from rendering regular operator
services in the schools and *797 limits their services to those incident to and for the purpose of
instruction. The Board also requires signs to be displayed in the be auty school reading: ‘School of
Beauty Culture—Work Done Exclusively by Students.’ Students must wear some insignia identifying
them as such.
The appellee went to the school of the appellant to get a permanent wave. This work was performed
by a student at the price prescribed by the State Board. The appellee testified that on two occasions
she complained to the student that she was being burned and that he attempted to adjust the wave
units. Thereafter she developed a severe he ad burn. Medical testimony was introduced to substantiate
the appellee’s claim of injury. The student operator and the proprietor deny that the burn, if any, was
occasioned by the negligent manner in which the treatment was given. However, negligence does not
become an issue in the case in view of our theory of it.
The controlling questions are whe ther a patron of a beauty college assume s the risk of injury; and
whether the relationship between the operator of the college and a student is one which would
impose vicarious liability. No case has be en cited nor do we find one directly in point. In Massa
v. Wanamaker Academy of Beauty Culture, Inc., City Ct., 80 N.Y.S.2d 923, the trial court instructed
the jury to find for the defendant beauty school, if it believed the work on the injured plaintiff was
performed by a student. In that case, however, there was a release signe d by the patron exempting the
school from liability resulting from injuries sustained from the work of the student. In the statement
of facts, the court said:
458 | Plaintiff’s Conduct

‘* * * In this connection, and in order to give its students actual experience in the field, the defendant,
in its school, permits the

public to submit themselves to students of the

school, at the

risk of

the subje ct, with knowledge that the student is not a graduate be autician and liable to errors and
mistakes. * * *’
The appellant argues that the relationship was not one which would render the instructor liable
for the negligence of the pupil. Instead it is urged that, under the existing law, such a student is
classified as one not *798 yet competent to engage in the practice of beauty culture and that a patron
who accepts his services at a reduced cost assumes the risk arising out of such inexperience. The
negligence alleged in the pe tition was not that of insufficient or improper instruction or supervision,
but rather that the operation was negligently performed. In response to the appellant’s contention,
the appellee urges that, since the stude nt was under the control of the operator of the school, he was
a servant of the operator and therefore liability should attach.
It seems to us that under the facts of this case the appe lle e assume d the risk of the student operator’s
inexperience. This risk cannot be confined to less professional hair styling, but must include all the
dangers which might result from treatment by one who is not yet qualified. Having assumed the risk,
the patron cannot then impose liability on another.
Nor do we believe that the relationship here is of the nature that imposes vicarious liability. The
school instructs the pupil in the art of beauty culture, for which it receives a fee. As a part of his
schooling the student performs services for the public, but the school receives no profit therefrom.
In the case of Miller v. Garford Laboratories, 172 Misc. 567, it was held that the students of a beauty
school which received a profit for their services were employees within the me aning of the workmen’s
compensation law. The opinion recognized, however, that a person could be an employee for the
purposes of the compensation law and not occupy that relation within the me aning of the law of
negligence. In the instant case we have not only a tort claim but also a situation in which the students’
services do not result in the pecuniary gain of the school. Unde r the circumstances, the school is not
liable for the negligence of its students.
The judgment is reversed, with directions to set it aside, and for proceedings consistent with this
opinion.
Note 1. What does the court mean when it writes: “However, negligence does not become an issue in
the case in view of our theory of it”? How would you articulate its theory of the case?
Note 2. What is the source of the negligence alleged? Can you imagine a claim against the be auty
school itself? What would need to be alleged to make out such a claim? Why might it fail?
Note 3. Another rationale supplied for vicarious liability may be found in the Restatement:
It is negligence to use an instrume ntality, whether a human being or a thing, which the actor
knows or should know to be so incompetent, inappropriate, or defective, that its use involves
an unreasonable risk of harm to others. Restatement (Second) of Torts § 307 (1965)
This is known as the “dangerous instrumentality” doctrine, and you have se en it explicitly in the
Plaintiff’s Conduct | 459

Landings alligator case as well as implicitly in the se cond prong of the test for applicability of res ipsa
loquitur (whether the instrumentality was under the control of the defendant). Would the dangerous
instrumentality theory, if applied in Wall v. Gill, make out a be tter case for the plaintiff? Or is the
beauty school not “using” an instrumentality (beauticians-in-training) at all, based on the way the
school is structured? Based on what you have read about vicarious liability and its relationship to
control, does it matter who uses the instrumentality, versus who has the capacity to control its use?

2. Contributory Negligence
th

The doctrine of contributory negligence is thought to originate in an e arly 19

century English case

in which a plaintiff was “riding as fast as his horse could go” and could have avoided colliding with
a pole in the road had he be en riding at a reasonable spe ed. Butterfield v. Forrester, 103 Eng. Rep.
926 (1809). However, the defendant was negligent in having placed a pole across part of the public
road, and the action thus originated against him. The trial judge instructed the jury to focus on the
plaintiff’s conduct and find whether “a person riding with reasonable and ordinary care could have
seen and avoided the obstruction.” On appeal, the court upheld the jury verdict for the defendant,
announcing the rule that “one person being in fault will not dispense with another’s using ordinary
care for himself. Two things must concur to support this action, an obstruction in the road by the fault
of the defendant, and no want of ordinary care on the part of the plaintiff.”
In one se nse , the rule on contributory negligence reflects an underlying insistence on the causal
nexus required for any tort action: if the defendant’s conduct was not the proximate cause of the
plaintiff’s injuries, then it is unfair to force the de fendant to compensate the plaintiff for them.
Yet unlike proximate cause, with its fact-sensitive, circumstance-examining inquiries, contributory
negligence created a complete bar to recovery, at least at first. Over time, doctrines would evolve
to “soften” these otherwise harsh outcome s, but the rule remained rather starkly “either/or” in its
approach to liability. As a result, the majority of jurisdictions have now adopted comparative fault.
It is still worth studying contributory negligence for the five jurisdictions that retain it and for an
understanding of the e volution of 20

th

century tort law since the complex legislative and judicial

decision making it involved is informative for understanding tort policy more generally.

Davies v. Mann, Court of the Exchequer (1842)
(10 M. & W. 546, 152 Eng. Rep. 588)
At the trial, before Erskine, J., at the last Summer Assizes for the county of Worcester, it appeared that
the plaintiff, having fettered the fore feet of an ass belonging to him, turned it into a public highway,
and at the time in que stion the ass was grazing on the off side of the road about eight yards wide,
when the defendant’s waggon [sic], with a team of three horses, coming down a slight descent, at what
the witness termed a smartish pace, ran against the ass, knocked it down, and the whe els passing over
460 | Plaintiff’s Conduct

it, it died soon after. The ass was fettered at the time, and it was proved that the driver of the waggon
was some little distance be hind the horse s. The le arned Judge told the jury, that though the act of the
plaintiff, in leaving the donkey on the highway so fettered as to prevent his getting out of the way of
carriages travelling along it, might be ille gal, still, if the proximate cause of the injury was attributable
to the want of proper conduct on the part of the driver of the waggon, the action was maintainable
against the defendant; and his Lordship directed them, if they thought that the accident might have
been avoided by the e xercise of ordinary care on the part of the driver, to find for the plaintiff. The
jury found their verdict for the plaintiff, damages 40s.
Godson now moved for a new trial, on the ground of misdirection.
LORD ABINGER, C.B. I am of opinion that there ought to be no rule in this case. The defendant has not
denied that the ass was lawfully in the highway, and therefore we must assume it to have be en lawfully
there; but even were it otherwise, it would have made no difference, for as the defendant might, by
proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his
negligence, though the animal may have been improperly there.
PARKE, B. * * * [A]lthough the ass may have be en wrongfully there, still the defendant was bound to
go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might
justify the driving over goods left on a public highway, or even over a man lying asleep there, or the
purposely running against a carriage going on the wrong side of the road.
Note 1. What’s the alleged breach of conduct, or “untaken precaution” here? What caused the accident,
and who could have avoided it?
Note 2. Is the rationale convincing to you (“were it not so, a man might justify driving over goods left
on a public highway, or even a man lying asleep there…”)?
Note 3. Contributory negligence was a rather harsh rule, in that it barred any actions against plaintiffs
who were e ven the slightest bit negligent. Courts expressly placed the burden on the defendant to
prove negligence by the plaintiff (rather than forcing the plaintiff to prove a lack of negligence), and
this helped mitigate the harshne ss of the rule some what. Still, other doctrines arose to “soften” or
ameliorate the rule ’s rigid, potentially unfair outcomes. One of these ameliorating doctrines was the
doctrine of “last clear chance,” first articulated in Davies v. Mann. When the plaintiff’s negligence
would ordinarily bar an action, but the defendant was the last person capable of avoiding the accident,
the law deems the defendant to have had the “last cle ar chance” of preventing injuries. This will limit,
or negate altogether, the defense of contributory negligence. Some commentators have held that it
is nothing more than a version of proximate cause (or intervening force) analysis: the defendant’s
actions (or failure to act) effectively serve as a superseding cause that severs the chain of causation
between the plaintiff’s own negligence and the acts of the defendant. The last cle ar chance doctrine is
irrelevant (and often abolished) in jurisdictions that underwent reform and abandoned the doctrine of
contributory negligence. But it provides a good example of how tort law’s principles of fair allocation
and its inquiries into the causal nexus recur throughout many doctrines, in many different postures.

Plaintiff’s Conduct | 461

Haugh v. Jones & Laughlin Steel Corp., Seventh Circuit Court of Appeals
(1991)
949 F.2d 914, 916
This is an appeal (long delayed by virtue of the defendant’s bankruptcy and the resulting automatic
stay only recently lifted) from a judgment for the defendant entered upon a directed verdict in the
second trial of a diversity personal-injury suit. The first trial ended in a jury verdict of $85,000 for
the plaintiff, but the district judge granted the defendant’s motion for a new trial on the basis of an
improper communication by the marshal to the jury during the jury deliberations. The e vidence was
somewhat different at the se cond trial and persuaded the judge to grant the defendant’s motion for
a directed verdict (which he had denied at the first trial) on the twin grounds that the defendant had
owed no duty of care to the plaintiff and that, in any event, the e vidence showed conclusively that the
plaintiff had been contributorily negligent—which at the time of the accident was a complete defense
to liability.
Indiana has since replaced contributory negligence with comparative negligence, whereby a plaintiff’s
own negligence is only a partial defense unless that negligence is adjudged more than 50 percent
responsible for the accident; but the statute*916 is not retroactive. [cc] The plaintiff’s appeal seeks
reinstatement of the first jury’s verdict on the ground that the grant of a new trial violated Rule
606(b) of the Federal Rules of Evidence, and alternatively a new trial—a third trial—on the ground that
the grant of a directed verdict was improper because a reasonable jury could have found that the
defendant owed the plaintiff a duty of care and that the plaintiff was not contributorily negligent.
At the time of the accident, in 1980, John Haugh was employed by Eichleay Corporation, which had a
contract with Jones & Laughlin Steel Corporation to furnish workers and materials for making repairs
at J & L’s mill in East Chicago, Indiana. Haugh’s particular job was to remove any generator needing
repairs and replace it with a steel shaft (weighing almost a ton) to maintain a connection with the
remaining generators, and then in turn to remove the shaft when the generator was ready to be
reinstalled after having been repaired. It was in the course of his removing a shaft that the accident
occurred. Although the contract between Eichleay and J & L gave Eichle ay complete responsibility for
the removal of generators and shafts incidental to the repair function for which it had been hired, the
practice was for employees of J & L, not of Eichleay, to do the preliminary rigging. So when on the day
of the accident Haugh approached the shaft that he had be en ordered to remove, he found as usual
that most of the bolts connecting the shaft to the generator had already been removed and a chain
hoist had been affixed to a choke (cable) that had been wrapped around the shaft.
Unfortunately, the cable had not be en tightened around the shaft; it had no choking action. Haugh
didn’t notice this, and when, having removed the remaining bolts, he drew on the chain hoist to pull
the shaft out from between the generators, the shaft slipped out of the cable and fell on him, injuring
his arm. He had long e xperience in the job and admitted on cross-examination at both trials that if
he had looked closely at the rigging he would have se en it was defective. The suit is against J & L for
the negligence of its employees in rigging the shaft improperly, suit against Eichleay being barred of
course by the workers’ compensation statute.
462 | Plaintiff’s Conduct

[Judge Posner discusses improper communications by the court marshall at the lower court that
tainted the jury’s verdict and requires a new trial.] [***] So the judge was right to grant a new trial
and the ne xt question is whether he was also right to grant a directed verdict for the defendant. We
think not. The argument over this question has been immensely confused by J & L’s insistence on
invoking the intricate rules of tort liability of landowners. [***] Those rules concern the concept of
duty. Negligence is the breach of a duty of care; so there must be a duty before there can be a finding
of negligence.
There is much old and some ne w learning on the range of duties that landowners owe the various
categories of entrants onto their land—trespassers both adult and child and both deliberate and
inadvertent, licensees, social guests, business invitees, public officers engaged in the performance of
their duties, and so on. Haugh was a business invitee . The rule use d to be that a landowner was liable
for injury to a business invitee caused by a dangerous condition on the land only if the landowner had
superior knowledge of the danger. The rule has be en changed—in Indiana by Douglass v. Irvin, 549
N.E.2d 368, 370 (Ind.1990), which as we read it assimilates the landowner’s duty in such a case to the
general duty to avoid negligence.
The que stion in the present case, however, is not whether J & L provided a safe place for Eichleay
to perform the services for which it had been hired. We may assume that it did. The question is not
whether J & L as a landowner was responsible for the negligence of its independent contractor. It was
not. That is the general rule, Howard v. H.J. Ricks Construction Co., 509 N.E.2d 201, 205 (Ind.App.1987),
and none of the e xceptions is applicable here. Anderson v. Marathon Petroleum Co., 801 F.2d 936 (7th
Cir.1986).
Haugh’s theory of liability is different. It is that employees of J & L negligently rigged the shaft that
Haugh had been told by his own employer to move. For this negligence by employees of J & L, to which
the site of the accident and hence J & L’s status as a landowner is irrelevant and its duty of care simply
the duty that everyone has (prima facie ) to avoid a careless act that injures another person, J & L is
liable unde r the doctrine of respondeat superior unless Haugh was contributorily negligent or some
other defense to liability is in play (none is). It makes no difference that the contract between J & L
and Eichleay assigned responsibility for the rigging to Eichleay. If you undertake an activity, whether
or not you are required to do so, you must carry it through nonnegligently. [cc]
Haugh’s contributory negligence would be a complete defense, but it is not proved merely by evidence
that he could have prevented the accident by inspecting the rigging. Accident victims almost always
can as a matter of physical possibility prevent accidents to themselves. Pedestrians could wear
helmets, or refuse to cross at intersections if there was any traffic even if the light was with them,
or cower *920 at home. The failure to protect oneself from an accident is contributory negligence
only if there is a duty to protect oneself in the particular circumstances, which means only if due care
requires self-protection in the circumstances. [c]
Whether it did here remains unclear despite Haugh’s concessions on cross-examination. Ordinarily a
person is not deemed contributorily negligent for failing to take precautions against the negligence
of others. [c] The plaintiff “was not bound to anticipate danger and negligent conditions on the part
of defendant or his employees…. He had a right to presume that he was not exposed to danger which
Plaintiff’s Conduct | 463

could come to him only from a breach of duty by the defendant.” [***] The plaintiff’s duty is to take
the care that is due given the risk of unavoidable accidents, that is, accidents that might occur even
without negligence [c]. Otherwise, the more careless people were, the greater would be the duty
of their potential victims to protect themselves against carelessness. The burden of responsibility
for taking care would shift from the careless to the careful and the total costs of accidents and
accident prevention would rise. If J & L’s riggers had been careful, there would have be en no need
for Haugh to inspect the rigging himself before moving the shaft. He was not—not as a matter of
law, anyway—charged with responsibility for backstopping the e xercise of care by the employees of
another employer. [c]
These are

matters for a jury to sort out. The

record does not disclose so one-sided a case

of

contributory negligence as to entitle the judge to take the issue from the jury. So, unfortunately, there
must be a third trial unless—as we hope —the parties can settle the case on the basis of the information
furnished by two trials (one to verdict) and this appellate decision.
REVERSED AND REMANDED.
Note 1. This opinion, by renowned judge and legal scholar, Richard Posner, illustrates the way in which
understanding both old and new rules in a given area can be important, and it also gives you a sense
of how doctrine-heavy some complex contemporary cases can be, requiring that you seamlessly move
from doctrine to doctrine as you analyze the facts. The Court of Appeals for the Se venth Circuit
adopted comparative negligence during the pendency of the litigation, yet it cannot be applie d in
the instant case and thus contributory negligence remains the applicable rule he re. Further, Posner
discusses the shift away from the tripartite structure of duties to entrants on land, to following the
California approach: now in Indiana the duty to entrants on land is not specified by entrants’ status
but consists instead of the duty of reasonable care. Lastly, Posner mentions three important workplace doctrines: Haugh cannot recover against his employer, Eichleay, for on-the-job injuries because
that is the province of workers’ compensation; vicarious liability may apply because J & L will be liable
for the torts of their employees if the relevant tests are satisfied; and there is ordinarily no vicarious
liability to the hiring party (J & L) for the torts of their independent contractor (Eichlay) unless the
independent contractor falls under one of the four main exceptions to the rule. Working through
opinions that present a thicket of doctrines is excellent practice for the complex litigation landscape
of many of your upper-division law school classes and characteristic of contemporary litigationoriented legal practice.
Note 2. Why does Judge Posner believe remand is necessary?
Note 3. One of the rules in this case is: “Ordinarily a person is not deemed contributorily negligent for
failing to take precautions against the negligence of others.” What does this mean, substantively, and
procedurally?

Check Your Understanding – Set 29

464 | Plaintiff’s Conduct

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=69#h5p-91

th

Contributory Negligence and 20

Century Tort Reform

Contributory negligence’s dominance first began to recede in 1910 whe n the state of Mississippi
became the first in the United States to depart from the traditional rule. However, change was slow.
By the 1960s, only 7 states had adopted comparative fault, the modern alternative. It took a seismic
change (and significant multi-industry lobbying) in the 1980s to effectuate broad tort reforms, but
39 more states ultimately adopted some version of comparative fault, sometimes through legislative
action, sometimes through judicial opinions. Only four states (Alabama, Maryland, North Carolina and
Virginia) and the District of Columbia retained contributory negligence, and these five jurisdictions
remain distinctly in the minority.
There are different types of comparative fault: pure comparative fault (adopted in some form by
Alaska, Arizona, California, Florida, Hawaii, Kentucky, Louisiana, Mississippi, Missouri, New Mexico,
New York, Rhode Island, and Washington) and modified comparative fault (adopted by all the rest
in one version or another). There are two primary types of modified comparative fault. Roughly a
dozen jurisdictions follow the so-called 50 percent Bar Rule according to which the plaintiff may
not recover if they are 50% or more responsible for their own injury (and at 49% or less, the regular
comparative fault rules would apply). The remaining states follow the 51 percent Bar Rule, which is
what it sounds like: the plaintiff may not recover if they are 51% or more responsible for their own
injury. The two systems differ only if the plaintiff is found to be e xactly 50% at fault. (Both would allow
recovery at 49% and both would bar it at 51%.) You can see this focus on “roughly 50%” as an extension
of the preponderance of the e vidence rule, which requires that the parties meet their burdens of
proof by around a 51% probability. It may seem a little arbitrary in its execution, but it’s an attempt
to retain some of the de terrence and fairness principles behind the old contributory negligence rule
without retaining its starkly polarized outcomes. The system overall displays tort law’s sometimes
maddeningly jurisdiction-specific quirkiness. For instance, the differences in the system mean that
a car accident that occurs in Kansas City, which straddles two states, is subject to different rules if
it happe ns on the Missouri side (pure comparative fault) of the central river versus the Kansas side
(modified comparative fault). Should tort law’s outcomes be allowed to vary so greatly, even when
they are base d on the very same facts, set in nearly identical settings? Or should uniformity be more
prominent in efforts to achieve tort law’s purposes? Alternatively, is the choice to allow jurisdictions
to set their own rules one of the ways of achieving and tailoring tort law’s purposes? Perhaps absurd
Plaintiff’s Conduct | 465

results along borders can always be e xpected in our system of federalism unless Congress acts to
federalize the que stion. The se policy issues were all in the backdrop as tort reform made its way
steadily through the courts and legislative bodies in the second half of the 20

th

century.

Comparative fault is a more complicated topic than we can fully cover in an introductory torts class,
in that it involves procedural questions, substantive issues governing liability (and immunity thereto)
and allocational complexities. For instance, should liability be de termined by the comparative fault
of the parties? If so, is the proper means of measuring and comparing the fault of the parties the
level of breach of conduct, that is, assessment of whether one party’s conduct is considerably more
unreasonable? Or should it be me asured by the level of causation, such that even if a first party’s breach
was more egregious, if a second party’s breach contributed more substantially to causing the harm, or
to increasing the risk or amount of harm, that second party would bear a higher share of the fault? And
to what extent should differing levels of duty, as well as different justifications for proximate cause and
different immunities all factor in when evaluating comparative fault? This is all focusing on liability
alone.
A second critical question is whether the apportionment of damages should mirror the le vel of
fault used to determine liability. Whether or not to do so—rather than trying to parse out which
damages were actually caused by particular acts of unreasonable conduct—may depend on how the
comparative fault is analyzed in the first stage. It is worth remembering something we have discusse d,
in passing, a few times, but not yet fully considered: there are typically two parts to a trial. First, a
liability determination, and second, a damages determination. Sometimes, these may be discusse d at
the same time in a bifurcated trial, but often, they are de cided one after the other. Can you see how
the system of comparative fault will make the issue s difficult to keep distinct? Comparative fault arose
as a means to soften contributory negligence. However, in many states, it came in with, or shortly
before, a wave of tort reforms that addressed perceptions that tort law was unfairly allocating liability
awards to the parties able to pay, regardless of their level of contribution. In particular, joint and
several liability became a target of reform, with many states either abolishing or limiting joint liability
as being incompatible with comparative fault.

3. Comparative Fault
Rodriguez v City of New York, Court of Appeals (2018)
(31 N.Y.3d 312)
*315 This appeal requires us to answer a question that has perplexed courts for some time: Whether a
plaintiff is entitled to partial summary judgment on the issue of a defendant’s liability, when, as here,
defendant has arguably raised an issue of fact regarding plaintiff’s comparative negligence. Stated
differently, to obtain partial summary judgment in a comparative negligence case, must plaintiffs

466 | Plaintiff’s Conduct

establish the absence of their own comparative negligence. We hold that a plaintiff does not bear that
burden.
Plaintiff Carlos Rodriguez was employed by the New York City Department of Sanitation (DOS) as a
garage utility worker. He was injured while “outfitting” sanitation trucks with tire chains and plows
to enable them to clear the streets of snow and ice. The following facts are uncontradicted: On a
snowy winter day, plaintiff and his two coworkers were tasked with outfitting sanitation trucks with
tire chains and plows at the Manhattan 5 facility. Typically, the driver backs the truck into one of the
garage bays, and the driver and other members of the te am “dress” the truck. One person acts as a
guide, assisting the driver by providing directions through appropriate hand signals while standing on
the passenger’s side of the truck. Once the truck is safely parked in the garage, the driver, the guide,
and the third member of the team (here, plaintiff) place chains on the truck’s tires.
At the time of his accident, plaintiff was standing between the front of a parked Toyota Prius and a rack
of tires outside of the garage bay while the driver began backing the sanitation truck into the garage.
The guide, at some point, stood on the driver’s side of the sanitation truck while directing the driver
in violation of established DOS safety practices. The sanitation truck began skidding and eventually
crashed into the front of the parked Toyota Prius, propelling the car into plaintiff and pinning him
up against the rack of tires. Plaintiff was taken to the hospital and ultimately had to undergo spinal
fusion surgery, a course of lumbar epidural steroid injections, and extensive physical therapy. He is
permanently disabled from working.
*316 Plaintiff commenced this negligence action against the City of New York. After discovery, he
moved for partial summary judgment on the issue of defendant’s liability pursuant to CPLR 3212.
Defendant opposed the motion and cross-moved for summary judgment in its favor. Supreme Court
denied both motions. In denying plaintiff’s motion for partial summary judgment, Supreme Court held
that there were triable issue s of fact regarding foreseeability, causation, and plaintiff’s comparative
negligence. [fn]
The Appellate Division granted plaintiff leave to appe al to this Court [c] certifying the following
question: “Was the order of Supreme Court, as affirmed by this Court, properly made?” [fn]
*317 Whether a plaintiff must demonstrate the abse nce of his or her own comparative negligence
to be entitled to partial summary judgment as to a defendant’s liability is a question of statutory
construction of the CPLR. [***] Article 14–A of the CPLR contains our State’s codified comparative
negligence principles. CPLR 1411 provides that
“[i]n any action to recover damages for personal injury, injury to property, or wrongful death,
the *318 culpable

conduct attributable

to the

claimant or to the

de cedent, including

contributory negligence or assumption of risk, shall not bar recovery, but the amount of
damages otherwise recoverable shall be diminishe d in the proportion which the culpable
conduct attributable to the claimant or decedent bears to the culpable conduct which caused
the damages.” (Emphasis added.)
CPLR 1412 further states that “[c]ulpable conduct claimed in diminution of damages, in accordance

Plaintiff’s Conduct | 467

with [CPLR 1411], shall be an affirmative defe nse to be ple aded and proved by the party asserting the
defense.”
Placing the burden on the plaintiff to show an absence of comparative fault is inconsistent with the
plain language of CPLR 1412. In 1975, New York adopted a system of pure comparative negligence,
and, in so doing, directed courts to consider a plaintiff’s comparative fault only when considering the
amount of damages a defendant owes to plaintiff. The approach urged by defendant is therefore at
odds with the plain language of CPLR 1412, because it flips the burden, requiring the plaintiff, instead
of the defendant, to prove an absence of comparative fault in order to make out a prima facie case on
the issue of defendant’s liability. [fn]
*319 Defendant’s approach also defies the plain language of CPLR 1411, and, if adopted, would permit
a possible windfall to defendants. [***] For example, assuming in a hypothetical case a defendant’s
negligence could be established as a matter of law because defendant’s conduct was in violation of
a statute (see PJI 2:26) and further assuming plaintiff was denied partial summary judgment on the
issue of defendant’s negligence be cause plaintiff failed to establish the absence of his or her own
comparative negligence, the jury would be permitted to decide the question of whether defendant
was negligent and whether defendant’s negligence proximately caused plaintiff’s injuries. If the jury
answers in the negative on the que stion of defendant’s negligence, the plaintiff would be barred from
recovery even though defendant’s negligence was established as a matter of law and in contradiction
to the plain language of *320 CPLR 1411. Such a windfall to a defendant would violate se ction 1411’s
mandate that a plaintiff’s comparative negligence “shall not bar recovery” and should only go to the
diminution of damages recoverable by plaintiff. Furthermore, it is no answer to this conundrum that
the trial court could set aside the verdict. The whole purpose of partial summary judgment is to
streamline and focus the factfinder on the issues that need resolution, and avoid having juries make
findings that are contrary to law.
Defendant’s attempts to rely on CPLR 3212’s plain language in support of its preferred approach
are also unavailing. Specifically, defendant points to CPLR 3212(b), which provides; “[a] motion for
summary judgment shall … show that there is no defe nse to the cause of action.” Defendant’s approach
would have us consider comparative fault a defense. But, comparative negligence is not a defense to
the cause of action of negligence, because it is not a defense to any element (duty, breach, causation)
of plaintiff’s prima facie cause of action for negligence, and as CPLR 1411 plainly states, is not a bar to
plaintiff’s recovery, but rather a diminishment of the amount of damages.
The approach we adopt is also supported by the legislative history of article 14–A. [***] Article 14–A’s
enactment was proposed by the 1975 Judicial Conference of the State of New York (the Conference)
in response to this Court’s decision in Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282
N.E.2d 288 [1972]), which first provided for the apportionment of negligent responsibility among joint
tortfeasors. In proposing the se ction which later became CPLR 1411, the Conference spe cifically noted
that neither the defense of contributory negligence or assumption of risk “shall continue to serve as
complete defenses” in negligence actions [c]. In proposing the se ction which became CPLR 1412, the
Conference urged the adoption of the then-majority rule in this country, which provided that “in all
negligence actions … the defendant claiming contributory negligence of the plaintiff has the burden of
showing it” (id. at 245). The Conference also observed that the “burden of pleading and burden of proof
468 | Plaintiff’s Conduct

are usually parallel” and that “[t]his article may be vie wed as having created a partial defense, the effect
of which is to mitigate damages, and *321 such defenses traditionally must be ple aded affirmatively”
(id. at 246).
[***] The purpose of the law was to bring “New York law into conformity with the majority rule
and represents the culmination of the gradual but persistent erosion of the rule that freedom from
contributory negligence must be ple aded and proven by the plaintiff” [c]. The legislative history of
article 14–A makes clear that a plaintiff’s comparative negligence is no longer a complete defense
and its absence ne ed not be ple aded and proved by the plaintiff, but rather is only relevant to the
mitigation of plaintiff’s damages and should be pleaded and proven by the defendant. [***]
*323 Plaintiff contends, even assuming there is an issue of fact regarding his comparative fault,
that he is entitled to partial summary judgment on the issue of defendant’s liability. [***] We agree
with plaintiff that to obtain partial summary judgment on defendant’s liability he does not have to
demonstrate the absence of his own comparative fault.
We

also reject defendant’s contention that granting the

plaintiff partial summary judgment on

defendant’s liability serves no practical purpose. A principal rationale of partial summary judgment is
to narrow the number of issues presented *324 to the jury [fn]. In a typical comparative negligence
trial, the jury is asked to answer five questions:
1. Was the defendant negligent?
2. Was defendant’s negligence a substantial factor in causing [the injury or the accident]?
3. Was plaintiff negligent?
4. Was plaintiff’s negligence a substantial factor in causing (his or her) own injuries?
5. What was the percentage of fault of the defendant and what was the percentage of fault of
the plaintiff? (PJI 2:36).
Where plaintiff has already established defendant’s liability as a matter of law, granting plaintiff partial
judgment eliminates the first two questions submitted to the jury, thereby serving the beneficial
purpose of focusing the jury on questions and issues that are in dispute.
Nor do we agree with defendant that what it characterizes as bifurcation of the issues of defendant’s
liability from plaintiff’s liability runs counter to the Pattern Jury Instructions. [***] As a practical
matter, a trial court will instruct the jury in a modified version of Pattern Jury Instruction 1:2B that the
issue of defendant’s negligence, and in some cases, the related proximate cause question, have be en
previously determined as a matter of law. Trial courts are e xperienced in crafting such instructions,
for example when liability has already been determined in a bifurcated trial, or when an Appellate
Division upholds a liability determination and remands solely for a recalculation of damages, or a trial
on damages has been ordered pursuant to CPLR 3212(c).
To be entitled to partial summary judgment a plaintiff does not bear the double burden of establishing
a prima facie case of *325 defendant’s liability and the absence of his or her own comparative fault.
Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with
costs, and the case remitted to the Appellate Division for consideration of issues raised but not
determined on the appeal to that Court and the certified question answered in the negative.
Plaintiff’s Conduct | 469

GARCIA, J. (dissenting).
The majority holds that plaintiff’s motion for partial summary judgment on liability was improperly
denied, notwithstanding issues of fact as to plaintiff’s comparative negligence. We disagree. The
rule has be en, and should remain, that a plaintiff must demonstrate the abse nce of issues of fact
concerning both defendant’s negligence and its own comparative fault in order to obtain summary
judgment. [c]
Plaintiff’s injury occurred while he was working in a New York City Department of Sanitation garage, as
he and his colleagues outfitted sanitation trucks with tire chains and a plow in order to clear snow and
ice from the City streets. With the storm ongoing, plaintiff’s colleagues were backing a truck into the
Department’s garage bay when the truck slid several feet and hit a parked car, which skidded forward
and hit plaintiff.
Supreme Court rejected both parties’ summary judgment motions. In rejecting plaintiff’s motion,
the

court found that there

were

triable

issue s of fact as to the

City’s liability, specifically with

respect to causation and foreseeability, as well as plaintiff’s comparative fault. The court noted that
“[f]oreseeability questions are generally left for the fact finder to resolve” (citing Derdiarian v. Felix
Constr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980] and that numerous issues of
fact remained concerning causation. In addition, the court found that even if defendant’s liability was
established, “plaintiff would not be entitled to summary judgment as to liability since the que stion of
his comparative fault must be resolved at trial.” [***]
Attempts have be en made to amend the comparative fault statute to place on a defendant opposing
summary judgment “the burden of interposing proof of culpable conduct” (see S. 20572017–2018 Reg
Sess [NY 2017]; S 7779/2016–2017 Reg Sess [NY 2016]; [c]. Such attempts at legislative reform would
be unne cessary if plaintiffs were entitled to summary judgment despite the e xistence of issues of
fact concerning comparative fault. As defendant points out, these proposed bills would still preclude
summary judgment where “defendant presents evidence of plaintiff’s comparative fault sufficient to
raise a question of fact” after a plaintiff has demonstrated defendant’s liability as a matter of law (see
Assembly Mem. in Support, H 2776 [2017]). The majority’s approach goes well beyond these proposals,
enabling a plaintiff to obtain summary judgment even where, as happened here, a defendant *329 has
demonstrated that plaintiff’s comparative fault may be significant.
[***] Determinations of degree
s of fault should be

made

as a whole , and asse ssing one

party’s

fault with a preconceived idea of the other party’s liability is inherently unfair; or, as the Appellate
Division characterized it, a defendant would “enter[ ] the batter’s box with two strikes already called”
(142 A.D.3d at 782, 37 N.Y.S.3d 93). Indeed, as the Appellate Division also note d, the Pattern Jury
Instructions advise that a jury consider both parties’ liability together (see PJI 2:36).
This is because the issue s of defendant’s liability and plaintiff’s comparative fault are intertwined. A
jury cannot fairly and properly assess plaintiff’s comparative fault without considering defendant’s
actions (see e.g. Siegel, Practice Commentaries C 3212:24 [noting that “(n)o purpose (is) served by
the granting of summary judgment” where “the proof that would go into the damages question
substantially overlaps that on which liability depends”]). [***]
470 | Plaintiff’s Conduct

Simultaneous consideration by the jury of both parties’ level of culpability is also the more practical
approach. Indeed, “few, if any, litigation efficiencies are achie ved by the entry of partial summary
judgment in this context because the de fendant would still be entitled, at trial, to present an allout case on the plaintiff’s culpable conduct [c]. In the e vent that plaintiff obtained partial summary
*330 judgment without removing issues of comparative fault, a jury would still be required to assess
plaintiff’s degree of liability, and then make a damages determination in a subsequent proceeding.
[***] The majority promotes its approach by pointing to the “eliminat[ion]” of the first two questions
a jury must answer in a “typical comparative negligence trial” [c]. But these questions would not be
eliminated by a grant of partial summary judgment, as an assessment of defendant’s negligence would
be required in order for the jury to determine comparative fault and damages.
Nor is our approach barred by the statutory language of CPLR article 14–A. Requiring a plaintiff
to show freedom from comparative fault in advance of obtaining summary judgment does not “bar
recovery” in derogation of article 14–A. Before the e nactment of Article 14–A, a plaintiff was unable
to obtain recovery of any sort where he or she was in any way culpable (Fitzpatrick v. Int’l. Ry. Co.,
252 N.Y. 127, 133–34 [1929] [“At common law a person has no cause of action for negligence, if he
himself has contributed, in the slightest degree, to bring it about”]). Article 14–A enables a plaintiff to
recover despite comparative fault [c]. It does not mandate that courts grant partial summary judgment
on liability to plaintiffs who are comparatively at fault, as the majority’s approach would require.
The comparative fault statute simply provides that a plaintiff is entitled to recover a certain amount
of damages, to be determined by a jury, even in cases where plaintiff has engaged in some degree
of culpable conduct. This requires that each party’s culpability be assessed and liability determined
before judgment is granted [c] [“(W)hat the statute requires comparison of is not negligence but
conduct which, for whatever reason, the law deems blameworthy, in order to fix the relationship of
each party’s conduct to the injury sustained and the damages to be paid by the one and received by
the other as recompense for that injury”]).
*331 The majority repeatedly speaks to the “double burden” our approach would place on defendant.
But there is no unfair tipping of the scales. Plaintiff in his moving papers made a blanket assertion of
freedom from any comparative negligence and defendant, in response, came forward with extensive
evidence of plaintiff’s comparative fault. Plaintiff’s burden was merely that placed on any party moving
for summary judgment—to demonstrate a lack of triable issues of fact. In that, plaintiff failed.
Order, insofar as appealed from, reversed, with costs, case remitted to the Appellate Division, First
Department, for consideration of issues raised but not determined on the appe al to that Court and
certified question answered in the negative.
Note 1. What are the two opinions disagreeing over? Put in your own words what would come ne xt,
in the litigation, under each of the two opinions. What values or methods seem to underlie the
differences of opinion?
Note 2. Identify at least one of the purposes of summary judgment referenced in the opinions. Can it
be reconciled with tort law’s various purposes, and, in particular, with its preference for fact-tailored
determination of most of the elements of negligence?

Plaintiff’s Conduct | 471

Note 3. What do you notice about how the two opinions each characterize the facts? What does this
tell you about how to craft statements of fact in service of a position of advocacy? At a minimum,
precise factual description is important both because it can be hotly contested, and because of how
it can be e ven just strategically framed. Consider the following characterizations of fact from the two
Rodriguez opinions at the appellate le vel, whose majority denied the plaintiff’s summary judgment
motion (holding that plaintiff had to prove absence of comparative fault). What differences do you
observe?
Facts (Majority): [I]n the present case, plaintiff was injured when a sanitation truck backed
into a Toyota Prius that then struck plaintiff. Defendant claims that plaintiff, an employee
of defendant, while working outside the sanitation garage, was not supposed to walk
behind a sanitation truck moving in reverse, and thus contributed to the cause of the
accident. At his deposition, plaintiff testified that as the truck was backing up slowly, he
was walking towards the front of the Prius, which was stationed behind the moving truck.
Plaintiff stated that he took approximately 10 steps forward before the impact. It would
appear that plaintiff was injured while walking behind a truck slowly moving backwards
which he was not supposed to do. There is no e vidence in the record that plaintiff was
merely “standing” in front of the Prius whe n he was struck, as asserted by the dissent.
Further, the e vidence shows that the truck was moving in reverse at approximately five
miles per hour when it skidded on snow/ice and struck the Prius. Unde r this factual
scenario, the trier of fact could determine that defendant was free from negligence and
that plaintiff was 100% at fault in causing his injuries.
Facts (Dissent): On a snowy day in January 2011, plaintiff and two coworkers, employees
of defendant New York City’s Department of Sanitation (DOS), were tasked with placing
tire chains on sanitation trucks to provide be tter traction in the snow. While plaintiff was
waiting for his coworkers to bring another truck into the garage for outfitting with chains,
he walked towards the garage, between a parked car and a rack of tires. Plaintiff allegedly
suffered injuries when his coworkers backed the truck into the parked car, which was
propelled into him. The driver testified that, as he moved the truck in reverse, the “guide
man” stood on the driver’s side (he should have be en guiding from the passenger’s side,
according to an accident report by a DOS safety officer) and gave an abrupt signal to stop,
at which point the driver hit the brakes hard enough that he “jerked the truck” and slid
into the car. The guide man te stified that he started signaling from the passenger’s side, as
required, and moved to the driver’s side only after it appeared that the driver was unable
to see him signaling to stop. The guide man further testified that he signale d several times
to stop, but the driver did not brake until the guide man moved to the driver’s side and
began waving his arms and yelling.

Check Your Understanding – Set 30

472 | Plaintiff’s Conduct

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=69#h5p-92

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=69#h5p-93

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=69#h5p-94

Comparative Fault’s Intersection with Joint and Several Liability

White v. Diva Nails, Court of Appeals of Michigan (2020)
(Unpublished opinion 2020 WL 3476744)
*1 Plaintiff Jill White appe als as of right the trial court’s order granting summary disposition in favor
of defendants Diva Nails, LLC, and Nails Studio (collectively, defendants). We reverse.
On April 19, 2016, plaintiff claims to have received a manicure at Diva Nails in Livonia. She testified that
during the manicure, the nail technician cut the skin on plaintiff’s right thumb with cuticle clippers,
breaking the skin and causing a small bleed. She alleged that the te chnician, who was not wearing
gloves, did not disinfect the cut or ask plaintiff to wash her hands before finishing plaintiff’s manicure.
15

On April 23, 2016, plaintiff visited Nails Studio in Howell, Michigan for a polish change and a pedicure.

15. A polish change is different from a manicure because, generally, a polish change only involves removing the current nail
polish and applying a new nail polish.
Plaintiff’s Conduct | 473

The te chnician was identified during discovery. According to plaintiff, that technician reopened the
cut received at Diva Nails on plaintiff’s right thumb with cuticle clippers, causing her wound to bleed
and did not use any disinfectant on the cut or ask the Plaintiff to wash her hands. The technician
denies that the wound was re-opened but admits that she wore one glove on her left hand. The
technician from Nails studio denied being diagnosed with any communicable disease.
On April 26, 2016, plaintiff went to Livonia Urgent Care be cause the cut on he r right thumb was
inflamed and painful. Plaintiff was diagnosed with a bacterial infection and given antibiotics. After
another visit to Livonia Urgent Care and two visits to St. Joseph Mercy Livingston Hospital, plaintiff
was diagnosed with Herpes Whitlow and prescribed antiviral medication. Herpes Whitlow is a type of
the Herpes Simplex Virus. The Herpes Simplex Virus is broken down into two types: Herpes Simplex
and Herpes Simplex 2. Herpes Simplex 2 generally presents in the form of genital herpes, whereas
Herpes Simplex 1 usually presents in the form of oral infections such as cold sores. While 50% to 80%
of the general population have Herpes Simplex 1, an “extremely low” percentage of the population has
Herpes Whitlow. The incubation period for the Herpes Simplex Virus is 1 to 26 days. Herpes Whitlow
can be passe d through the skin, saliva, from oral or anal sex, and by touching an open wound. Once a
person contracts Herpes Whitlow, that person becomes a carrier of the virus for the rest of her life.
A carrier of Herpes Whitlow can be asymptomatic her entire life and not know that she has the virus.
Only a blood test can definitively show that a person is a carrier of Herpes. Plaintiff experienced an
outbreak on September 1, 2016, but has not experienced anymore outbreaks since then.
Plaintiff’s expert witness, Dr. Michael McIlroy, testified that plaintiff suffered a “very severe outbreak”
and “will be considered infectious to others even when she does [not] have any active lesions.” In
Dr. McIlroy’s opinion, plaintiff “definitely” contracted Herpes Whitlow at one of the nail salons. Dr.
McIlroy could not determine whether plaintiff contracted the virus from Nails Studio or Diva Nails,
but the timing of plaintiff’s outbreak and the location of the nail injury indicated that the likelihood
that plaintiff contracted the virus from one of the nail salons is “extremely high.” As to how plaintiff
would have contracted the virus, Dr. McIlroy testified as follows: *2 “At one of the salons, one of the
workers had the herpes simplex [virus], more likely than not, and through the nail injury, transmitted
their virus or the virus on the instrument to [plaintiff] and the cutting of her finger made it even a
higher likelihood that she would acquire [H]erpes [W]hitlow because of the injury.” No other expert
witness opined as to the origin or cause of Herpes Whitlow.
Plaintiff filed a complaint against defendants, alleging negligence under an alternative-liability theory.
After discovery both defendants filed motions for summary disposition under MCR 2.116(C)(10),
arguing that alternative-liability theory was no longer viable in Michigan because

the

1995 tort

reform abolished joint liability and that plaintiff could not prove causation. The trial court did not
determine whether the 1995 tort reform and abolition of joint liability eliminated alternative liability
in Michigan, but concluded that summary disposition was warranted, nonetheless, because plaintiff
could not demonstrate causation. According to the trial court, plaintiff could have contracted Herpes
Whitlow from anywhere, and therefore, summary disposition was warranted. Plaintiff’s motion for
reconsideration was denied, and this appeal followed.
Plaintiff argues that the trial court erred in granting defendants’ motion for summary disposition

474 | Plaintiff’s Conduct

because alternative-liability theory is still viable in Michigan and there is a ge nuine issue of material
facts as to whether either defendant caused her injury. We agree.
• ALTERNATIVE-LIABILITY THEORY
[***] At a minimum, the applicable threshold evidentiary standard to a plaintiff’s proof of factual
causation in negligence cases is that a causation theory must have some basis in e stablishe d fact. …
Plaintiff concedes that she is unable to ide ntify the actor who caused her injury, but contends that,
under alternative-liability theory, she can satisfy the causation element.
*3 Under a theory of alternative liability, a plaintiff can overcome the causation element and shift the
“burden of apportioning damages” by holding the defendants jointly and severally liable, as explained
in the seminal case concerning alternative-liability theory in Michigan, Abel v. Eli Lilly & Co., 418 Mich.
311, 317 (1984). Abel was a products liability case that involved the daughters (and their spouses) of
women who had taken the drug DES, a synthetic estrogen product, during their pregnancies. Because
the plaintiffs were unable to ide ntify the manufacturer of the drug to which the y were e xposed, the
plaintiffs sued all manufacturers of the drug by relying on alternative-liability theory. Id. at 318. By
relying on this doctrine, the plaintiffs sought to “circumvent the traditional tort element of causation
in fact” and hold all of the manufacturer-defendants jointly and severally liable. Id. The Supreme
Court ruled in favor of the plaintiffs, holding that the plaintiffs who were unable to ide ntify the
drug manufacturer that harmed them … “may take advantage of the burden-shifting feature of the
alternative[-]liability theory to withstand summary judgment on the causation issue of the negligence
claims.” The Supreme Court described the legal doctrine as follows:
Also called “clearly established double fault and alternative liability,” this procedural device shifts the
burden of proof on the element of causation in fact to the defendants once an innocent plaintiff
demonstrates that all defendants acted tortiously, but only one unidentifiable defendant caused
plaintiff’s injury. If the defendants cannot meet this burden and exculpate themselves, joint and several
liability will be imposed.[c] [fn]
When the Supreme Court decided Abel, multiple tortfeasors that produced a single, indivisible injury
were held jointly and severally liable. Gerling Konzern Allgemeine Versicherungs AG v. Lawson, 472
Mich. 44, 49 149 (2005). “This meant that where multiple tortfeasors caused a single or indivisible
injury, the injured party could either sue all tortfeasors jointly or he could sue any individual tortfeasor
severally, and each individual tortfeasor was liable for the entire judgment, although the injured party
was entitled to full compensation only once.” Id. The right of contribution—an equitable remedy
available to concurrent tortfeasors—then allowed one tortfeasor to recover among or between other
tortfeasors. The principle [sic] purpose of “‘contribution’ was to mitigate the unfairne ss resulting to
a jointly and severally liable tortfeasor who had been required to pay an entire judgment in cases in
which other tortfeasors also contributed to an injury
In 1995, the Legislature enacted tort reform measures, 1995 PA 161 and 1995 PA 249, and limited
the availability of joint and several liability. The Legislature enacted several statutory provisions
specifically designed to allocate fault for damages among multiple tortfeasors by abolishing joint and

Plaintiff’s Conduct | 475

several liability is most cases. [c] The tort reform statutes applicable in this case are MCL 600.2956,
MCL 600.2957(1), MCL 600.2960(1), and MCL 600.6304.
MCL 600.2956 provides, in relevant part:
Except as provided in section 6304, in an action based on tort or another legal theory
seeking damag es for personal injury, property damage, or wrongful death, the liability
of each defendant for damages is several only and is not joint.
MCL 600.2957(1) provides:
In an action based on tort or another legal theory seeking damages for personal injury,
property damage, or wrongful death, the liability of each person shall be allocated under
this section by the trier of fact and, subject to section 6304, in direct proportion to the
person’s percentage of fault. In assessing percentages of fault under this subsection, the
trier of fact shall consider the fault of each person, regardless of whether the person is,
or could have been, named as a party to the action.
MCL 600.2960(1) provides:
The person seeking to establish fault under sections 2957 to 2959 has the burden of
alleging and proving that fault.
*4 MCL 600.6304 provides, in relevant part:
(1) In an action based on tort or another legal theory seeking damages for personal injury,
property damage, or wrongful death involving fault of more than 1 person, including
third-party defendants and nonparties, the court, unless otherwise agreed by all parties
to the action, shall instruct the jury to answer special interrogatories or, if there is no
jury, shall make findings indicating both of the following:
(a) The total amount of each plaintiff’s damages.
(b) The percentage of the total fault of all persons that contributed to the de ath or
injury, including each plaintiff and each person released from liability under section
2925d, regardless of whether the person was or could have be en named as a party to
the action.
***
(4) Liability in an action to which this section applies is several only and not joint. Except
as otherwise provided in subsection (6), a person shall not be required to pay damages in
an amount greater than his or her percentage of fault as found under subsection (1). This
subsection and section 2956 do not apply to a defendant that is jointly and severally liable
under section 6312.
***
(8) As used in this section, “fault” includes an act, an omission, conduct, including
476 | Plaintiff’s Conduct

intentional conduct, a breach of warranty, or a breach of a legal duty, or any conduct that
could give rise to the imposition of strict liability, that is a proximate cause of damage
sustained by a party.
Defendants contend that alternative-liability theory is no longer viable in Michigan because joint and
several liability is critical to the doctrine’s application and was abolished by the 1995 tort reform.
Whether the 1995 tort reform expressly abolished joint liability and effectively eliminated alternate
liability involves, in part, statutory interpretation …Defendants are correct in that, except for cases
16

where it was expressly preserved by statute, the liability of each tortfeasor is “several only” and “not
joint.” MCL 600.2956; MCL 600.6304(4).
However, abolition of joint liability does not preclude a plaintiff from invoking alternative liability
to seek recovery when she cannot identify which of multiple tortfeasors caused her injury. Each
tortfeasor is now liable

only for the

portion of the

total damages that reflect that tortfeasor’s

percentage of fault. [c] Rather than hold multiple tortfeasors liable for the entire judgment, i.e., jointly
liable, the trier of fact will determine each tortfeasor’s proportion of fault and extent of liability. MCL
600.2957(1); MCL 600.6304(1)(b). Even if the defendants are unable to e xonerate themselves—after the
burden of proving factual causation has shifted—defendants will only be liable for their proportion of
fault, which the trier of fact will determine. MCL 600.2957(1); MCL 600.6304(1)(b). Simply, alternative
liability is still feasible e ven though only several liability is available to a plaintiff in a case such as this
one.
*5 Alternative liability was not available to a plaintiff because multiple tortfeasors could be held jointly
and severally liable; it was available be cause multiple tortfeasors acted wrongfully, and the injured
plaintiff is unable to establish which of the tortfeasors actually caused the injury. Abel, 418 Mich.
at 334. Alternative-liability theory focuses on factual causation, not how, or in what proportions,
the defendants will be held liable. The underlying principle of alternative liability is “to prevent the
injustice of allowing proved wrongdoers to escape liability for an injury inflicted upon an innocent
plaintiff merely because the nature of their conduct and the resulting harm has made it difficult or
impossible to prove which of them has caused the harm.” Id. at 327 (citation and quotation marks
omitted). Even without joint liability, the application of alternative liability fulfills the Legislature’s
intent to require a plaintiff in a tort action with multiple defendants to establish sufficient facts that
would e nable the fact-finder to discern each person’s liability in direct proportion to their percentage
of fault.
While alternative-liability theory does not relieve the plaintiff of the burden of establishing proximate
causation, i.e., that defendants’ actions were the natural, probable, foreseeable causes of plaintiff’s
contraction of Herpes Whitlow. Accordingly, a plaintiff is still required to present sufficient facts
proving duty, breach, proximate causation, and damages.

16. MCL 600.6304(6) allows joint and several liability in certain medical malpractice cases. MCL 600.6312 allows joint and
several liability in tort cases in which a defendant’s act or omission is (1) “a crime, an element of which is gross
negligence, for which the defendant is convicted,” or (2) “a crime, an element of which is the use of alcohol or a
controlled substance, for which the defendant is convicted and” that is a violation of one of certain enumerated laws.
Plaintiff’s Conduct | 477

[***] Having concluded that alternative-liability theory is still viable in Michigan, we conclude that
the trial court erred when it granted defendants’ motions for summary disposition because plaintiff
presented sufficient evidence to create a ge nuine issue of fact regarding causation. For alternative
liability to be applicable [in Michigan], the plaintiff must demonstrate three elements:
(1) all the defendants acted tortiously,
(2) the plaintiff was “harmed by the conduct of one of the defendants,” and
(3) the plaintiff, through no fault of her own, is unable to identify which actor caused the
injury. Abel, 418 Mich. at 331-332.
The se cond element requires plaintiff to “make a genuine attempt to locate and identify the tortfeasor
responsible for her injury” and “bring before the court all the actors who may have caused the injury
in fact.” Id. [c] Once a plaintiff has met all three requirements, she is relieved “of the traditional
burden of proof of causation in fact.” In this case, the facts alleged by plaintiff and contained in the
record compromise e vidence from which a reasonable jury could conclude that both defendants acted
tortiously. [c]
According to plaintiff, technicians from both salons cut the skin on her right thumb and failed to treat
the cut with disinfectant or soap. Neither technician wore gloves on both hands or asked plaintiff to
wash her hands after she was cut. Dr. McIlroy testified that the te chnicians improperly placed the
burden on plaintiff to clean a wound that they caused. Defendants negligently exposed plaintiff to a
communicable dise ase by failing to ensure that their employees wear gloves, do not expose clients
to contagious viruses, adequately treat any open wounds, and otherwise work in a hygienic manner.
[***] The timing of plaintiff’s injury in relation to her visits to the nail salons and the location of the
injury indicated an “extremely high” likelihood that plaintiff contracted the virus from one of the nail
salons. Dr. McIlroy testified that he was 99% certain that Diva Nails or Nails Studio was responsible for
her injury. Dr. McIlroy’s testimony demonstrates that plaintiff contracted Herpes Whitlow from one
of the two nail salons, and therefore, all possible actors who may have caused plaintiff’s injury were
brought before the court.
*7 Plaintiff, through no fault of her own, is unable to identify which actor caused her injury. The
technician from Nails Studio states that she has ne ver been diagnosed with any form of the Herpes
Simplex Virus. However, Herpes Whitlow can be asymptomatic and thus undetectable unless a blood
test is performed. In addition, whether or not plaintiff’s technician at Nails Studio had the virus does
not necessarily mean that Nail Studio or Diva Nails did not cause plaintiff’s injury. According to Dr.
McIlroy, plaintiff could have contracted the virus at one of the salons, from her technician or from a
worker transmitting the virus on the instrume nt used when plaintiff was cut. Thus, the injury making
[sic] it even a higher likelihood that she would contract Herpes Whitlow. [***] Moreover, the actions
of the te chnicians at defendants’ salons were ne arly identical. Both technicians failed to wear gloves
on both hands, cut plaintiff’s right thumb in the same location, failed to disinfect the cut, and faile d to
ask plaintiff to wash her hands.
Alternative-liability theory is applicable to this case be cause plaintiff can demonstrate the three
threshold requirements. Accordingly, plaintiff is relieved of the burden of proving causation in fact,
which now shifts to defendants. Plaintiff has demonstrated an inability to identify the nail salon
478 | Plaintiff’s Conduct

which harmed her and may benefit from “the burden-shifting feature of alternative- liability theory
to withstand summary [disposition] on the causation issue of the negligence claim[ ].” Abel, 418 Mich.
at 339. As stated above, plaintiff is still obligated to present evidence proving all other elements of
negligence, including proximate causation.
Moreover, plaintiff has presented substantial evidence from which a jury may conclude that, more
likely than not, she would not have contracted Herpes Whitlow but for defendants’ conduct. The trial
court ignored Dr. McIlroy’s expert testimony that plaintiff contracted Herpes Whitlow from one of
the two nail salons and that both defendants acted negligently. While 50% to 80% of the population
have Herpes Simplex 1, the trial court was incorrect in determining that Herpes Whitlow is common
and thus there was no way to determine where plaintiff contracted the virus. To the contrary, Herpes
Whitlow is very rare and is much more difficult to pass from one individual to another. The trial court
decided a fact that can only be resolved by the jury. Thus, summary disposition was inappropriate.
We reve rse the trial court’s order granting defendants’ motions for summary disposition and remand
for further proceedings. We do not retain jurisdiction.
Cavanagh, J. (dissenting).
Plaintiff failed to establish that both nail technicians were infected with the herpes simplex virus, and
thus, a jury could not conclude that more likely than not, but for their negligent conduct, plaintiff
would not have contracted herpetic whitlow. [***] Accordingly, I would affirm the trial court’s order
granting summary disposition in favor of defendants Diva Nails, LLC, and Nails Studio. [***] Plaintiff’s
expert witness, Dr. Michael McIlroy, testified that he believed plaintiff acquired the herpes virus at one
of the nail salons. But he did not know if, in fact, either nail technician actually had the herpes simplex
virus. Nevertheless, in McIlroy’s opinion “one of the workers had Herpes Simplex, more likely than not,
and through the nail injury, transmitted their virus or the virus on the instrument to [plaintiff] ….”
McIlroy explained that the Herpes Simplex 1 virus is usually transmitted by saliva so the saliva of
one of the herpes-infected nail technicians who performed either of plaintiff’s nail procedures likely
transmitted the virus to plaintiff. The te chnician could have touche d her mouth and had saliva on her
finger and then transmitted the virus to plaintiff through her open wound. McIlroy testified that it
was unlikely that the instruments used by either technician were the source of transmission because
the virus does not usually survive on an instrument.
…In my opinion, plaintiff failed to establish that a ge nuine issue of material fact existed on the issue
whether either defendant caused her to contract Herpes Whitlow. Plaintiff contends that, while she
cannot identify which nail technician caused her infection, she does not have to; inste ad, she can
satisfy the causation element of her negligence claim using a the ory of alternative-liability. Plaintiff
relied on the testimony of her expert, McIlroy, to support her causation theory that a herpes-infected
nail technician at either or both salons caused her to become infected with the herpes virus.
But plaintiff never proved that both nail technicians in fact had the Herpes Simplex virus to pass on
to plaintiff. McIlroy was merely speculating …. A valid theory of causation must be base d on facts in
evidence. [c] Impermissible conjecture and mere spe culation are insufficient to establish causation.
[cc] [***] There is no record evidence establishing that the nail te chnicians were infected with the
Plaintiff’s Conduct | 479

herpes virus. In fact, one of the nail te chnicians testified that she did not have the herpes virus. If
neither nail technician had the herpes virus, how could they pass it on to plaintiff? Thus, plaintiff
cannot demonstrate causation and he r claim must fail. The issue whe ther the 1995 tort reform
eliminated alternative liability need not be de cided in this case. But even if an alternative liability
theory is viable in Michigan, plaintiff’s claim would fail.
Under a theory of alternative liability, a plaintiff could seek recovery for an injury although she could
not identify which of multiple tortfeasors caused her injury. As explained in the case of Abel v. Eli Lilly
& Co., 418 Mich. 311 (1984), the doctrine was first formally recognized in a case involving a plaintiff who
was shot at by two hunting companions but was only hit by one of them. Id. at 325-326. The plaintiff
could not meet his burden of proving cause-in-fact because there was no way to determine which one
of the two defendants more likely than not shot him, i.e., there was a 50% chance that either of the
defendants shot him. Id. at 326. As a matter of policy, it was decided that the two proved wrongdoers
should bear the burden of absolving themselves rather than depriving the innocent plaintiff of a
remedy. Id. at 326-327. This theory of “alternative liability” was formally approved by the Abel Court,
which held that certain requirements must be me t before a plaintiff could rely on that theory of
liability, including: (1) it must be shown that all the defendants acted tortiously; (2) that the plaintiff
was harmed by the conduct of one of the defendants; and (3) through no fault of her own, the plaintiff
is unable to identify which defendant caused the injury. Id. at 331-332.
In this case, to advance an alternative-liability theory plaintiff would have to prove that both nail
technicians who performed services on her were infected with the herpes virus, and therefore, it was
impossible to de termine which nail technician actually transmitted the herpes virus to plaintiff. Like
the case of the two hunting companions discussed in Abel—where both hunters negligently shot a
bullet at the plaintiff but only one bulle t struck him and caused injury—here, both nail technicians
would have had to be infected with the herpes virus (like the two bullets) and negligently performed
nail services (like the shooting) so as to transmit the herpes virus to plaintiff. It would then be
impossible for plaintiff to determine which nail technician actually transmitted the herpes virus
because both were infected with it. But, again, there is no e vidence in this case that both nail
technicians were infected with the herpes virus, and thus, the transmission of the herpes virus cannot
be sourced back to both nail salon defendants. It is just as possible that neither, or only one, nail
technician was infected with the herpes virus. Plaintiff could also have be en exposed to herpesinfected saliva after leaving the nail salons with an open wound. Accordingly, I would affirm the trial
court’s order granting defendants’ motions for summary disposition.
Note 1. What was the defendants’ argument regarding alternative liability?
Note 2. Why did the court reject the defendants’ theory?
Note 3. The majority opinion points out that the te chnicians at both salons acted in an identical
manner: “Both technicians failed to wear gloves on both hands, cut plaintiff’s right thumb in the
same location, failed to disinfect the cut, and faile d to ask plaintiff to wash her hands.” Why could
that evidence not be use d to establish that it was unreasonable to e xpect that they would behave
otherwise?

480 | Plaintiff’s Conduct

Note 4. Do you agree with the court that there ne eds to be a footnote informing the court’s
readership of the me aning of a “polish change”? Do you think this is just the court being thorough,
given that there is a plausible legal significance to the difference be tween a polish change and a
manicure? Or might this suggest something about the sociology of the judiciary and perhaps the
identity and habits of judges? Do you think members of most juries could define a “polish change”
in the context of a dispute se t in the nail care industry? Should it matter to us whether our judges
and juries are out of touch with the lives of everyday Americans?
Note 5. Are you persuaded by the dissent’s use of Summers v. Tice? Is it correct in the analogy it draws
between the negligent conduct in Summers (negligently shooting in the plaintiff’s direction) and White
(having herpes)? Or is the breach of care the combination of nicking the plaintiff and working without
gloves in a situation where sanitary measures like gloves ought to be use d? In what other ways can
the two situations be analogized or distinguished?
Note 6. MCL 600.6304, which provide s the rule to follow when more than one pe rson is at fault,
includes consideration of “third-party defendants and nonparties.” What is the potential effect of
doing so? If the total fault allocated includes tortfeasors whose contribution cannot be collected, or
whose immunity from liability bars collection of an award of damages, has the plaintiff been fairly
compensated under the tort system? What countervailing mechanisms can you imagine to redress
this concern? What other priorities of tort law does this system reflect?

Plaintiff’s Conduct | 481

23. Immunities
In addition to the defenses supplied by plaintiff’s own behavior, the other main category of defenses
pertains to the status of the defendant: immunities. Entire classes of defendants are immune from
tort liability to particular classes of actors, or under particular circumstances. For example, parents
are generally immune from suit by their children with respect to their everyday childrearing choices,
employers are

generally immune

compensation when injured on the

from suit by their employee
s (who must turn to workers’
job), and judges are

immune

from lawsuit by parties before

them. A number of formerly broad immunities (such as spousal immunity or immunity for charitable
organizations) have either been eroded or abrogated over time. This is not an exclusive list of statusbased immunities, but these are likely the most significant ones historically.
Immunity offers powerful protection from lawsuits, and analytically, it operates somewhat as duty
does, that is, as a question of law intended to serve as a gatekeeping mechanism. However, just as was
the case with duty, there may be factual questions embedded in determinations of immunity. (Recall
that in Farwell v. Keaton, for instance, the court considered factual questions, such as the relationship
between the boys, to dete rmine the le gal issue of duty.) Similarly, determining immunity may require
resolution of underlying factual questions, such as whether a step-parent can avail himself of the same
immunity as the parent in a given situation (see Zellmer v. Zellmer, 164 Wash.2d 147 (2008)), or whether
governmental actors were acting in a particular capacity (say, as legislators) versus as managers or
employees whose actions should be treated, for tort liability purposes, more like those of private
citizens. Immunities are important in their own right as jurisdictional limitations and as substantive
protections. They also may play an important role in the ope ration of comparative fault and allocating
damages appropriately.
Immunities are also important because the y are defenses that pertain to particular statuses but do
not attempt to excuse the conduct of the immunized actor. In other words, it may be cle ar that an
actor is a tortfeasor and the only thing stopping liability from attaching is this immunity. In that
sense, immunities are very different from other defenses that may make the de fendant’s conduct not
wrongful (as in the case of self-defense or consent) or that may make the conduct only as wrongful
as the plaintiff’s (as in a hypothetical case of comparative fault). With immunities, the conduct may or
may not be wrongful; the point of the immunity is to shield the actor from having to submit to the
exercise of that investigation into wrongfulness. Protecting against that inquiry is precisely what is
thought to confer autonomy in the roles to which immunity attaches. Implicit in this is the concession
that mistakes are part of the job—whether for governmental actors, judges or parents—and these
mistakes, when made in the core of the function to which the immunity attaches, are not legally
recognized mistakes. Because of the significant amount of power wielded by those whom the law
immunizes categorically, it is important to pay close attention to the rationales offered for immunity
as well as to the operation and impact of maintaining it.

482 | Immunities

1. Judicial Immunity
Duvall v. County of Kitsap, Ninth Circuit Court of Appeals (2001)
(260 F.3d 1124)
[Editor’s note: the facts and parties have be en streamlined to edit the case for length; brackets
indicate edits.]
Christopher Duvall brought this action against a superior court judge, Kitsap County, the County’s
Americans with Disabilities Act (“ADA”) coordinator, the chairperson of the County’s ADA committee,
and the person who served as court administrator and court ADA coordinator. Duvall alleged that
these defendants failed to accommodate his he aring impairment during the state court proceedings
involving the dissolution of his marriage. Specifically, he contends that the defendants violated the
ADA, Section 504 of the Rehabilitation Act, and the Washington Law against Discrimination (WLAD)
1

by refusing to provide real-time transcription for his hearings. The district court granted summary
judgment to all defendants as to all claims. Duvall appeals.
I. Background
Christopher Duvall is completely deaf in his left ear and has a severe he aring impairment in his right
ear. Because he *1130 does not sign well enough to use American Sign Language or Signed English,
Duvall’s primary mode of receiving communication is through the written word. He wears customfitted hearing aids and is able to communicate effectively in one-on-one conversation in spoken
English with the aid of visual cues and lip reading. He finds it extremely difficult, however, to follow a
conversation in which he is not a participant. In such circumstance , he is unable to focus on a single
speaker to study his facial expressions, body language, and lip movement; nor is he able to control the
pace of the conversation, nor provide for a pause that would give him time to process the various aural
and visual cues and interpret the spe aker’s message. Attempting to overhear or follow a conversation
between others requires a great deal of concentration, and after approximately thirty minutes Duvall
begins to suffer from tinnitus and headaches that further diminish his capacity to understand spoken
communication.
In 1994 and 1995 Duvall was a party to a family law case in the supe rior court of Kitsap County,
Washington involving the dissolution of his marriage. In his declaration, he states that he was initially
able to participate me aningfully in several pre-trial hearings because the he arings were short, there
was no oral testimony, and the discussion centered on written materials that he had reviewed prior
to the he aring. Thereafter, however, he e xperienced difficulty in following the one pre-trial hearing
that included extensive oral testimony. That hearing took place in courtroom 269, the courtroom

1. Real-time transcription, also known as videotext display or close captioning, is a computer-aided transcription device
that converts typing from the court reporter’s stenographic machine into English language text displayed on a computer
screen.
Immunities | 483

designated for hearing-impaired individuals because of its small size, superior acoustics, and special
equipment, including an assistive-listening device, for hearing-impaired individuals. Nevertheless,
Duvall could not understand the testimony of his ex-wife, even though he knows her speech patterns
very well. Subsequently, after he continued to experience difficulty understanding the proceedings in
two further pre-trial hearings, Duvall realized that he would not be able to participate me aningfully
when the case came to trial without some form of accommodation. He then contacted the U.S.
Department of Justice

and was advised that he

should request videotext display from the

ADA

Coordinator for Kitsap County.
The parties dispute when Duvall first requested videotext display for his court proceedings. Duvall
contends that he contacted Barbara Razey, the county’s ADA coordinator, in April, 1995, and spoke to
her several times in the six weeks preceding his trial about his need for accommodation. According
to Duvall, he e xplained to Razey that he had e xamined the e quipment in courtroom 269 and had
concluded that it would not effectively accommodate

his he aring impairment, and specifically

requested real-time transcription for his trial, which was scheduled to begin in late June.
[When he called and Razey was out on vacation, Duvall asserts that he was directed to Madelyn Botta,
Director of the Superior Court’s administrative services and its ADA coordinator and that he spoke
with her twice in mid-May. While the substance of their conversations is disputed, Duvall contends
that he requested real-time transcription. Botta contacted Duvall’s attorney and told him that the trial
would be held in a courtroom equipped for the hearing impaired.] [***]
*1131 None of the court or county officials attempted to determine whether the facilities in courtroom
269 would accommodate Duvall’s hearing impairment, or whether it would be possible to provide
videotext display through a court-reporting service, although, according to Duvall, he had informed
them that the accommodations provided in Courtroom 269 were inade quate, given the nature of his
particular hearing problems.
The trial for the marriage dissolution action was held before Judge Le onard Kruse on June 21, 22,
and 23 in courtroom 269. That courtroom was equipped with the “Telex Soundmate,” an assistive
audio system for hearing-impaired individuals. Duvall contends that this device was inappropriate
for an individual like himself who uses hearing aids that are precisely adjusted to the user’s hearing
needs. Telex–Soundmate did not contain an inductive loop system that would transmit to Duvall’s
hearing aids and make use of their customized settings. He further declares that the facilities in
courtroom 269 required him to remove his he aring aids and to use e arbuds, which provided only
general amplification and impeded the use of his natural hearing ability. By Duvall’s account, requiring
him to remove his he aring aids to use the inferior Soundmate system was equivalent to requiring a
person with an artificial leg to remove the leg and use crutches.
Duvall’s attorney made a motion to the court on the first day of trial requesting videotext display
to accommodate Duvall’s hearing impairment. Judge Kruse stated in his deposition that this was the
first time that he had he ard about Duvall’s request for that accommodation. In any event, Judge Kruse
denied the motion, stating,
[T]hat’s the way humans happen to communicate, I guess up until a very recent time, with
484 | Immunities

one another is orally. And I know that some courts in some places have the ability to have,
in effect, an on-line screen available through the court reporter. We have not progressed
to that technical degree in this county, and I can only assume that if Mr. Duvall wished to
have that service available he can provide that service for himself.
Judge Kruse did, however, permit Duvall to move around the courtroom freely and position himself
wherever he could best hear the proceedings. Duvall sat in the jury box for a portion of the trial.
Although this permitted him to understand the witnesses somewhat better, he

was unable

to

communicate e asily with his lawyer, who was sitting at the counsel table. He testified that he made
extensive notes to preserve

his thoughts for his lawyer, but that he

misse d the testimony that

occurred while he was looking down to write notes.
When Duvall’s ex-wife took the stand on the first day of trial, Judge Kruse stated that the parties and
attorneys could move about the courtroom “unless it … starts to be disconcerting in some regard
*1132 or intimidating or something.” Duvall states in his declaration that he interpreted this remark to
imply that he was sitting too close to the witnesses, and moved several seats away from the witness
box, putting him out of effective aural range of the witnesses and attorneys. According to Duvall,
at this point he “gave up” and returned to his seat next to his attorney for the remainder of the
trial. The intense concentration required to attempt to follow the proceedings resulted in exhaustion,
headaches, and tinnitus, further impeding his ability to hear. In sum, Duvall avers that his hearing
impairment prevented him from meaningfully participating in the trial.
A post-trial hearing was scheduled for August 11, 1995.
[Duvall, again requested videotext display at the upcoming hearing hand-delivering a letter containing
his request on August 8 to both Razey and Botta. They responded on behalf of the County on the
same day with a letter stating simply that the he aring would be held in Courtroom 269. Again, no
county or court official made any effort to determine whether videotext transcription was available.
Duvall moved for a mistrial at the August 11 he aring, based upon the court’s failure to provide vide otext
display at the trial, and Judge Kruse de nie d the motion, stating that real-time transcription was not
available in Kitsap County.]
At the time of Duvall’s June trial, one of the county’s court reporters was training to learn real-time
transcription, and in fact had already demonstrated to Botta and several of the superior court judges
how that process works. Duvall also submitted declarations of court reporters in Seattle who stated
2

that they could have provided videotext display at the time of his trial. Indeed, when Razey first
contacted firms in Seattle and Tacoma in September 1995 as part of the investigation of Duvall’s
complaint to the county ADA grievance committee, she learned that these firms did, in fact, have
the capacity to provide vide otext display to the superior court in Kitsap County. Moreover, although
Sandra Baker and Associates, an independent firm that provided much of Kitsap County’s court-

2. Editor’s note: Seattle is in King County, to the East of Kitsap County (which covers Bremerton, Bainbridge Island and
Poulsbo). For context, according to the 2010 census numbers, King County’s population was 1.938 million; Kitsap
County’s was 251,133.
Immunities | 485

reporting services, had never provided videotext display prior to September 1995, when Kitsap County
first requested this service on September 19, 1995, that firm also was able to accommodate the
request. It provided videotext display for Duvall’s post-trial court hearing three days later, and for the
subsequent hearings.
The County’s ADA grievance committee denied Duvall’s grievance on October 6, and the Board of
County Commissioners denied his appeal in late November. Duvall filed suit in federal district court
under Title II of the ADA, Section 504 of the Rehabilitation Act of 1973, the Washington Law Against
3

Discrimination (WLAD), and 42 U.S.C. § 1983 seeking declaratory and compensatory *1133 relief.
The suit named as defendants (1) Judge Kruse and court administrator and ADA coordinator Botta
(collectively “the Superior Court defendants”) and (2) County ADA Coordinator Razey, County ADA
committee chairperson Richardson, and the three members of the Board of County Commissioners
(collectively “the

County defendants”). [fn] The

district court granted summary judgment to all

defendants on all claims. Duvall now appeals.
II. Judicial Immunity
The district court granted summary judgment to Judge Kruse and court administrator Botta on
the ground of judicial immunity. It is well settled that judges are generally immune from suit for
money damages. [c] However, absolute judicial immunity does not apply to non-judicial acts, i.e.
the administrative, legislative, and executive functions that judges may on occasion be assigne d to
perform. [c] We have identified the following factors as relevant to the de termination of whether a
particular act is judicial in nature:
(1) the precise act is a normal judicial function;
(2) the events occurred in the judge’s chambers;
(3) the controversy centered around a case then pending before the judge; and
(4) the e vents at issue arose directly and immediately out of a confrontation with the judge
in his or her official capacity. [c]
We conclude that Judge Kruse was acting in a judicial capacity when he refused to accommodate
Duvall. Judge Kruse te stified that he first learned of Duvall’s request for videotext display on the
first day of trial, when Duvall’s attorney brought a motion requesting videotext display. Following
completion of the trial, Duvall requested a new trial because of the absence of videotext display during
that proceeding. Duvall’s motions were made by his attorney while Judge Kruse was presiding over
Duvall’s case. The judge stated that, when he ruled on the motion requesting videotext display, he
did not consider Duvall’s request under the ADA. Instead, Judge Kruse considered only whether, as
a matter of courtroom administration, the courthouse was able to provide vide otext display without
delaying the start of the trial. At the August post-trial he aring, Judge Kruse simply ruled that Duvall

3. In his complaint, Duvall requested a declaration “that defendants have unlawfully discriminated against Plaintiff by
refusing to provide real time captioning for his dissolution of marriage proceedings.” Because Duvall ultimately received
real time transcription and the county now provides that service for hearing-impaired individuals, his claims for
declaratory relief are now moot. [c]. His suit for damages, however, is not. [c] We therefore discuss only the claims for
damages.
486 | Immunities

was not entitled to a new trial based upon the court’s earlier refusal to provide vide otext display.
Ruling on a motion is a normal judicial function, as is exercising control over the courtroom while
court is in session. Judge Kruse is therefore entitled to absolute judicial immunity. [fn]
Judicial immunity is e
xtended to “certain others who perform functions closely associated with
the judicial process.” [c] “When judicial immunity is extended to officials other than judges, it is
because their judgments are ‘functional[ly] comparab[le]’ to those of judges—that is, because the y,
too, ‘exercise discretionary judgment’ as part of their function.” *1134 [c] see also Greater Los Angeles
Council on Deafness v. Zolin, 812 F.2d 1103, 1108 (9th Cir.1987) (holding that “the lynchpin of both the
judicial and quasi-judicial immunities” is that the acts in question are “an integral part of the judicial
process”). Here, Botta was the superior court ADA coordinator as well as the court administrator.
She concedes that she had ministerial authority to arrange courtroom accommodations for disabled
individuals, but contends that, because she was entitled to determine whether Duvall would receive
his requested accommodations only in consultation with the judge presiding over his case, she is
entitled to quasi-judicial immunity.
For Botta’s defense of absolute immunity to succeed, she must demonstrate that her decision to
refuse videotext display was functionally comparable to the type of decision made by a judge [c].
Absolute

immunity is “the

e xceptional case.” [c] Although, in her deposition, Botta expressed

uncertainty about the limits of her authority to provide accommodations, she admitted that, as the
court’s ADA coordinator, she was the appropriate person from whom to request accommodations.
She further acknowledged that she made the de cision to accommodate Duvall by scheduling his trial
in Courtroom 269, rather than by providing him with videotext display. That she may have de cided
upon the accommodation she provided after consulting with Judge Kruse does not demonstrate that
she was exercising a quasi-judicial function rather than implementing the requirements of the ADA
pursuant to duties that had been assigned to her—particularly in light of Judge Kruse ’s testimony that
Botta did not consult with him or inform him about Duvall’s request for videotext display. In fact, some
of Botta’s deposition testimony strongly suggests that her decision not to provide vide otext display
was administrative in nature.
Q: You said that if someone came to you and requested an ASL interpreter for litigation, you would
make that decision yourself.
A: Right, based on the statute.
Q: Which statute?
A: I can’t cite it to you, but it’s my understanding that the legislature has de cided that sign-language
people should be available and that there is a statute—I can’t cite it to you.
Q: Do you know if that statute spe aks to any disabilities other than the need for a sign-language
interpreter?
A: I don’t know.
Q: So based on that statute you had the authority to provide … [a] sign-language interpreter?
A: Right.
Thus, it appears that when a statute requires, or perhaps even authorizes, the provision of a particular
form of assistive

de vice

to a he aring-impaired individual, Botta has the

necessary arrangements therefor, as an administrative

authority to make

the

matter. Further, it appears that in
Immunities | 487

acknowledging her authority in that regard, that Botta may have be en adverting to the very statutes
4

at issue here. Accordingly, the type of decision-making authority Botta exercised in Duvall’s *1135
case appe ars, at the very least, to raise an issue of material fact as to whether she was acting in
an administrative rather than quasi-judicial capacity. Because the burden is on the official claiming
immunity to demonstrate that public policy requires recognition of an absolute immunity, [c], we hold
that Botta’s deposition testimony alone precludes summary judgment in her favor.
[***Analysis of substantive allegations of violations of the ADA, the Rehabilitation Act, and the WLAD
omitted here]
The district court’s grant of summary judgment in favor of Judge Kruse and the me mbe rs of the Board
of County Commissioners is hereby AFFIRMED. The order of summary judgment in favor of Botta, the
County of Kitsap, Razey, and Richardson is REVERSED as to all claims. The case is REMANDED to the
district court for proceedings consistent with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.
RYMER, Circuit Judge, dissenting:
Like Judge Kruse , the Court Administrator, Madelyn Botta, is sued for damages and like him, I believe
she is entitled to immunity. As the majority recognizes, the judge was performing a judicial function
when he declined on the first day of trial (June 21, 1995) to order videotext display for Duvall and when
he denied Duvall’s motion for a new trial (August 11) based on the absence of real time assistance at
trial. Botta’s actions were functionally no different. For essentially the same reasons that Judge Kruse
is absolutely immune, the Court Administrator should be, too.
Duvall argues that Judge Kruse acted in an administrative capacity in denying Duvall’s request for
accommodation and that “he has no immunity to share with the remaining defendants.” The majority
holds otherwise with respect to the judge, and I agree. Duvall’s argument that Botta lacks immunity
stems from the same premise—that Judge Kruse was performing an administrative, not a judicial,
function, therefore so was the Court Administrator. As we unanimously reject this premise, this should
be the end of the matter.
Court clerks or administrators are entitled to absolute immunity from liability for damages “when
they perform tasks that are an integral part of the judicial process.” Mullis v. United States Bankruptcy
Court, 828 F.2d 1385, 1390 (9th Cir.1987) (court clerks have absolute quasi-judicial immunity for filing
5

decision). *1143 Here, assuming Duvall’s version is true, he approached Botta before trial for videotext

4. Although neither the Rehabilitation Act nor Title II of the ADA, on its face, requires the provision of sign-language
interpreters as an accommodation for hearing-impaired individuals, the regulations promulgated by the Attorney
General under Title II list sign-language interpreters and videotext display as among the accommodations required, in
appropriate circumstances, by the ADA. 28 C.F.R § 35.104(1).
5. See also Moore v. Brewster, 96 F.3d 1240, 1244 (9th Cir. 1996) (according immunity to clerk of the United States District
Court for the Southern District of California given nature of the responsibilities); Sharma v. Stevas, 790 F.2d 1486 (9th
Cir. 1986) (clerk of United States Supreme Court has quasi-judicial immunity); Morrison v. Jones, 607 F.2d 1269, 1273 (9th
Cir. 1979) (court clerk’s “failure ... to perform a ministerial duty [giving notice of order] which was a part of judicial
488 | Immunities

assistance at trial. Botta declined to talk to Duvall because he was represented by counsel, but told him
to make his request in the form of a motion to the court. Duvall does not dispute that Botta did not
have authority to grant his request once litigation was underway. He in fact asked the judge presiding
over his divorce for real time accommodation on the first day of trial. The judge denied the request.
This was clearly a discretionary judicial decision. [***]
Neither Duvall nor the majority explains why Botta’s instruction to take his request to the judge was
not part of the judicial process. Nor does either explain why she should not be bound (or least not
be properly guided) by the judge’s decision at trial when she was later consulted by the county ADA
coordinator with regard to Duvall’s post-trial request for accommodation at a post-trial hearing. [***]
Howeve
r you slice

it, determining whether a particular hearing impaired individual needs

accommodation for a court proceeding, and what kind of accommodation is reasonable, entails the
6

power of decision. It is either a judicial function, or comparable to one. It is not administrative,
legislative
, or e
xecutive. Judges may *1144 delegate

some

part of this function to the

court

administrator or clerk of court, but at the end of the day the function is, and remains, judicial.
In addition, Duvall was not without redress for he could appeal the judge’s rulings. As the Supreme
Court has observed, “[m]ost judicial mistakes or wrongs are open to correction through ordinary
mechanisms of review, which are largely free of the harmful side-effects inevitably associated with
exposing judges to personal liability.” [c]. Duvall does not need, and should not be allowed, to seek
damages from a court administrator for an arguably incorrect determination about his needs or the
court’s ability to address them. This is what appeals are for. To withhold judicial immunity from the
clerk in these circumstances permits a party to play the clerk off against the judge, an unseemly as
well as unnecessary distraction.
Without question, the judge is the final decision-maker with respect to proceedings in his court. RCW
2.28.010. For this reason, aside from immunity, I do not see how Duvall could be injured by anything
Botta did or didn’t do, or how Kitsap County, non-court personnel [***] and Richardson could have
told the judge what to do. Washington judges are state actors, whose authority comes from the state
not the county. Wash. Const., Art. IV, § 1; see Keenan v. Allan, 889 F. Supp. 1320, 1363 (E.D.Wash.
1995) (judges are officers of Washington State). As we have held in connection with a similar system
elsewhere, a county cannot be liable for judicial conduct it lacks the power to control. [c]
Accordingly, I would affirm.
Note 1. Does the majority define the scope of judicial immunity properly in your view, or improperly,
in distinguishing between the acts of the judge versus the administrator? Should something like a
vicarious liability rule apply if, as the dissent suggests (writing with the authority of a judge), “the

process is also clothed with quasi-judicial immunity”); Shipp v. Todd, 568 F.2d 133, 134 (9th Cir. 1978) (recognizing quasijudicial immunity for clerk of Montana state court from damages but not injunctive relief); Harmon v. Superior Court,
329 F.2d 154, 155 (9th Cir. 1964) (recognizing absolute immunity for county clerk and other judicial personnel).
6. “Administrative functions are actions which are significant independent of the fact that the actor is a judge, such as the
hiring or firing of staff members.” Partington v. Gedan, 961 F.2d 852, 866 (9th Cir. 1992) [c]).
Immunities | 489

judge is the final decision-maker with respect to proceedings in his court”? Are judicial clerks different
from administrators, if their work involves primarily research, writing, and counseling the judge on
the substantive matters before the judge? (See the footnote in the opinion at p. *1143 in which the
court lists jurisdictions that do provide partial or full immunity for clerks.)
Note 2. The majority opinion writes that “[b]ecause the burden is on the official claiming immunity to
demonstrate that public policy requires recognition of an absolute immunity, [c], we hold that Botta’s
deposition testimony alone precludes summary judgment in her favor.” What is the practical effect of
this statement? Can you articulate the reasons—descriptive and normative—for allocating the burden
of proof in this way at this stage?
Note 3. Where do you stand on the dissent’s argument that money damages are not the right remedy
for an argument like this one (assuming a violation of the ADA and/or other anti-discrimination laws
is proven)? The dissent argues that Duvall did have another means of redress in the form of appealing
the judge’s rulings. What concerns are driving the dissent’s argument?
Note 4. If judges are to remain immune for decisions like the one s in Duvall, more training seems
necessary in light of the apparent failures to understand the impact on a litigant that can be wrought
by a failure

to make

ne cessary accommodations. Especially in the

context of high-conflict

proceedings such as dissolution, in which the parties were instructed not even to stand too close to
each other, what ought to be done ? Are there reforms you can imagine, whether legal or sociocultural,
to improve the e nvironment for parties and advocates who may need accommodations in order to
gain meaningful access to the legal system?
Note 5. This opinion from 2001 quotes, but does not rebuke

or comment on, judicial language

that is plainly ignorant about and dismissive of an entire community of people living with hearingbased challenges. In fact, there is a lively discussion among academics, historians, and advocates
over whether deafness is misunderstood when it is cast as a disability rather than a subculture
that operates differently from the “mainstream hearing community.” Deaf people may still require
accommodations to enable their participation in mainstream events, including legal hearings, and
thus the

ADA is a powerful and welcome

tool for ensuring access to justice and other societal

institutions and spheres. But it is surely mistaken, careless, and lacking in empathy to state, as Judge
Kruse does, “[T]hat’s the way humans happen to communicate, I guess up until a very recent time,
with one another is orally…. I can only assume that if Mr. Duvall wished to have that service available
7

he can provide that service for himself.”

Note 6. Duvall relayed that “requiring him to remove his he aring aids to use the inferior Soundmate
system was equivalent to requiring a person with an artificial leg to remove the le g and use crutche s.”
He may have merely been trying to use an analogy that a hearing person could understand better.
Doe s the use of this analogy, however, convey a sense of deafness as physically disabling in a way

7. (For further discussion, see e.g. https://www.psychologytoday.com/us/blog/talking-apes/201802/is-deafness-reallydisability and Erica R. Harvey, Deafness: A Disability or a Difference (2013), 2 Health Law & Policy 42 (2008), available at:
https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1073&context=hlp)
490 | Immunities

that may help a legal argument but undercut the cause of deafness as a cultural condition rather than
a disability? And if the analogy does help advance Duvall’s legal argument, does it do so by relying
on the pathos associated with bodies that are not “normal” thus displaying its own ableism? Or is it
simply an effective way of conveying that the best way to overcome different physical challenges is
not necessarily universal but must be tailored and the best person to ask is the person overcoming
the challenges?
Professor Anne Bloom and the late Professor Paul Steven Miller have written that tort litigation suffers
what they call “blindsight” (deliberately invoking associations with blindness so as to reclaim them):
Tort litigation’s blindsight stems from its assumption that the lives of people with disabilities
are tragic. … This perspective is blindsighted because pe ople with disabilities do not tend
to share this assessment of their lives; in their view, a life with a disability is no more or
.

less tragic than a life without one… [T]ort litigation’s distorted perspective fosters troubling
stereotypes and encourages plaintiffs with disabling injuries to view themselves in harmful
ways. … From a disability rights perspective, this extreme focus on plaintiffs’ bodies overlooks
important aspects of a disabling injury…While there may be many physical issues associated
with disability, the main problem that most people with disabilities face is not their bodies but
social oppression… A person with a spinal injury, for example, faces less of a challenge from
walking than from social discrimination and the inability to gain access to many buildings with
a wheelchair… Thus, from a disability rights perspective, when a person suffers a disabling
injury, social and environmental factors play a significant role in creating the condition of
being designated as disabled.
Anne Bloom & Paul Steven Miller, Blindsight: How We See Disabilities in Tort Litigation, 86 Wash. L.
Rev. 709, 712-13, 717 (2011) They suggest that “[i]nstead of portraying plaintiffs as “tragedies,” legal
actors in tort litigation could present their clients’ disabling injuries in more complex ways that better
reflect people with disabilities’ actual experiences.” They recognize that compensation is important in
torts cases featuring severe injuries, but argue in favor of a more empowering, less tragedy-affirming
perspective. One of their primary recommendations is to e nable those with disabilities to play a more
active and prominent role in their cases, something that we have se en Duvall was trying to do, in vain.

Check Your Understanding – Set 31

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=71#h5p-95

Immunities | 491

2. Parental Immunity
Rousey v. Rousey, District of Columbia Court of Appeals (1987)
(528 A.2d 416)
Appellee, Doris Rousey, and her eleven-year-old daughter, Cheryl Rousey, were

involved in an

automobile accident in the District of Columbia. Cheryl sustained injuries, and through her father,
Smith Rousey, she brought suit against her mother, alleging that the accident and her injuries were a
direct and proximate result of her mother’s negligence. Mrs. Rousey, who was insured by Government
Employees Insurance Company and represented by its counsel, filed a motion for summary judgment
on the

ground that parental immunity barred appellant from suing his wife on behalf of their

unemancipated daughter. The court granted the motion, and Mr. Rousey appealed to this court.
A division of the court, recognizing that the doctrine of parental immunity had never been established
as the law of the District of Columbia, refused to adopt it and held that appellant was not barred from
maintaining this suit against appellee, his wife, on behalf of their unemancipated minor child. Rousey v.
Rousey, 499 A.2d 1199 (D.C.1985). That decision was vacated when the court decided to rehear this case
en banc. Rousey v. Rousey, 507 A.2d 1046 (D.C.1986). A majority of the court en banc now concludes, as
did the division, that the parental immunity doctrine is out of date. We de cline to adopt it, choosing
instead to follow section 895G of the RESTATEMENT (SECOND) OF TORTS (1979), which in our view
sets forth a more appropriate legal standard. We therefore reve rse the trial court’s order granting
summary judgment to appellee.
Unlike interspousal immunity, parental immunity was unknown at common law. *417 [c] Interspousal
8

immunity was based on the notion that husband and wife were legally one person, whereas parent

8. This rationale began to be questioned after the widespread enactment of statutes known as Married Women’s Acts,
beginning in the mid-nineteenth century, which gave wives many of the rights that their husbands had always enjoyed.
Some courts thus found it necessary to develop new theories to support the concept of interspousal immunity. The idea
that most often found favor was that “personal tort actions between husband and wife would disrupt and destroy the
peace and harmony of the home....” RESTATEMENT, supra, § 895F, comment d. Other courts, including this one, simply
held that “[t]he common law rule forbid[ding] a wife to sue her husband for any tort committed against her ... [was]
unaffected by the Married Women’s Act.” Mountjoy v. Mountjoy, 206 A.2d 733, 733 (D.C.) (citations omitted), appeal
denied, 121 U.S.App.D.C. 27, 347 F.2d 811 (1965). The common law doctrine of interspousal immunity was abolished in the
District of Columbia by statute in 1976. D.C.Code § 30–201 (1981) now provides in pertinent part:
The fact that a person is or was married shall not, after October 1, 1976, impair the rights and responsibilities of
such person, which are hereby granted or confirmed, to ... engage ... in any civil litigation of any sort (whether
in contract, tort, or otherwise) with or against anyone, including such person's spouse, to the same e xtent as an
unmarried person.... [Emphasis added.]
Given this enactment, it would be anomalous indeed for this court to adopt parent-child immunity as the law of the
District of Columbia when the most frequently cited rationale for that doctrine—the need to preserve domestic
tranquility and family unity—has been rejected by our own legislature in abolishing interspousal immunity.
492 | Immunities

and child were ne ver so regarded. Children, unlike wives, were entitled to own property and to
enforce their own choses in action, including those in tort; likewise, they were liable as individuals for
their own torts. [cc]
The notion that a parent might be immune from liability for tortious conduct toward his or her child
was not recognized in the United States until 1891, when the Supreme Court of Mississippi refused to
permit a suit brought by a child against her mother, alleging that the mother had falsely imprisoned
the child in an insane asylum. In ordering the suit dismissed, the court said:
[S]o long as the parent is under obligation to care for, guide, and control, and the
child is under reciprocal obligation to aid and comfort and obey, no such action
as this can be maintained. The pe ace of society, and of the families composing
society, and a sound public policy, designed to subserve the repose of families and
the best interests of society, forbid to the minor child a right to appear in court in
the assertion of a claim to civil redress for personal injuries suffered at the hands
of the parent.
Hewellette v. George, 68 Miss. 703, 711, 9 So. 885, 887 (1891). Although the court cited no authority for
this proposition, courts in all but eight other states followed Mississippi’s lead and adopted some form
of parental immunity. [c]
Various reasons have be en advanced in support of parental immunity, but the reason most frequently
cited by the courts has been the need to preserve domestic tranquility and family unity. [cc] Many
courts have

relied heavily upon the

analogy between husband and wife, despite

the

obvious

differences between the husband-wife relationship and the parent-child relationship. Because at
common law husband and wife were treated as one person, a wife generally could not sue her
husband. [c] Children, however, were ne ver treated as mere e xtensions of their parents; they could
even sue their parents in tort to protect their *418 property rights. [c] The situation with respect
to personal torts is somewhat less clear, since there are very few reported cases, but there is little
reason to doubt that the common law would permit actions for personal torts as well, subject only to
the parent’s right to enforce reasonable discipline against the child. [c] Thus we find the analogy to
interspousal immunity to be a faulty one, providing no real justification for immunity between parent
and child. Moreover, the courts that have adopte d parental immunity have ne ver adequately explained
why the immunity applies only to suits in tort and not to suits involving property or contract rights.
An action to enforce property or contract rights is surely no less adversarial than an action in tort,
and in theory, at least, it would present the same threat to family harmony.
Of course, the analogy to interspousal immunity and the concern with domestic tranquility have
not bee n the sole justifications for parental immunity. The courts have also e xpressed concern that
parental discipline and control might be compromised if children were permitted to sue their parents.
[cc] Others believed that an uncompensated tort contributed to peace in the family and respect for
the parent. [c] The absurdity of this reasoning, however, becomes plain when the case involves rape,
Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905), or a brutal beating, Cook v. Cook, 232 Mo.App. 994, 124
S.W.2d 675 (1939); McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903), or when the parent-child

Immunities | 493

relationship has been terminated by death before the suit was filed. Lasecki v. Kabara, 235 Wis. 645,
294 N.W. 33 (1940).
Persistent criticism of the doctrine of parental immunity eventually led to its erosion through the
9

creation of various exceptions to it. One court asserted that parent-child immunity “should not be
tolerated at all except for very strong reasons; and it should never be extended beyond the bounds
compelled by those reasons.” [c] Other critics of the doctrine went even further, arguing for its
complete abandonment. See, e.g., McCurdy, Torts between Parent and Child, 5 VILL.L.REV. 521, 529
(1960); McCurdy, Torts between Persons in Domestic Relation, 43 HARV.L.REV. 1030, 1079–1080 (1930);
[cc]
The courts of the District of Columbia were not faced with the issue until 1948, in a case in which
a thirteen-year-old boy brought suit against his mother for injuries he suffered in an automobile
accident. The accident occurred in Maryland, however, and hence the only question before the court
was whether the son had a right to bring suit under Maryland law. After stating that the issue had not
been decided in the District of Columbia and that it was “neither necessary nor proper … to analyze
the authorities, weigh the problem and announce a rule,” the court concluded that decisions of the
Maryland Court of Appeals “on kindred questions clearly indicate its accord with the overwhelmingly
prevalent rule that public policy forbids such suits.” Villaret v. Villaret, 83 U.S.App.D.C. 311, 312, 169 F.2d
677, 678 (1948). [***]
Although the

“overwhelming weight of authority” did at one

time

favor parental immunity, the

doctrine began to lose judicial support after a 1963 Wisconsin decision which abolished it entirely
except when the allegedly tortious act involved “an exercise of parental authority … [or] ordinary
parental discretion with respect to the

provision of food, clothing, housing, medical and dental

services, and other care.” Goller v. White, 20 Wis.2d 402, 413, 122 N.W.2d 193, 198 (1963). In 1977 the
American Law Institute completely rejected general tort immunity between parent and child when it
published section 895G of the RESTATEMENT (SECOND) OF TORTS. That section states:
(1) A parent or child is not immune

from tort liability to the other solely by reason of that

relationship.
(2) Repudiation of general tort immunity does not establish liability for an act or omission that,
because of the parent-child relationship, is otherwise privileged or is not tortious.
Many states have since followed the le ad of Goller v. White and the Restatement, so that a substantial
majority of states have now abandoned the doctrine in whole or in part. To date eleven states have
abrogated it entirely or declined to adopt it; fn] eleven have abrogated it in automobile negligence
cases; [fn] five have abrogated it in automobile negligence cases in which the parent has liability
insurance; [fn] and seven have abrogated it except in cases in which the parent’s alleged tortious act

9. See, e.g., Dzenutis v. Dzenutis, 200 Conn. 290, 512 A.2d 130 (1986) (no immunity when child’s injury arose out of a
business activity conducted by the parent away from the home); Hale v. Hale, 312 Ky. 867, 230 S.W.2d 610 (1950) (no
immunity when death of either parent or child terminates the parental relationship); Dunlap v. Dunlap, 84 N.H. 352, 150
A. 905 (1930) (no immunity for intentional or reckless infliction of bodily harm).
494 | Immunities

involves an exercise of parental authority over the child, or ordinary parental discretion with *420
respect to such matters as food, care, and education. [fn]
This trend toward abrogation is attributable, in large part, to the prevalence of liability insurance.
[cc] The availability of insurance relieves the parents of direct financial responsibility for injuries
sustained by their children, and thus substantially reduces the possibility that an action for damages
will disrupt domestic tranquility or family unity. As the Supreme Judicial Court of Massachusetts
wrote in Sorensen:
When insurance is involved, the action between parent and child is not truly
adversary; both parties seek recovery from the insurance carrier to create a
fund for the child’s medical care and support without depleting the family’s
other assets. Far from being a potential source of disharmony, the action
is more likely to preserve the family unit in pursuit of a common goal—the
easing of family financial difficulties stemming from the

child’s injuries.

[Sorensen v. Sorensen, 369 Mass. 350, 362 (1975)] [cc]
Although there is a possibility that parent and child may conspire to defraud the insurance carrier or
that the parent may fail to cooperate with the carrier as required under the insurance contract, [c]
10

that possibility exists to a certain extent in every case; it hardly justifies a “blanket denial of recovery
for all minors.” Sorensen, supra, 369 Mass. at 363, 339 N.E.2d at 915; [cc].
We constantly depend on efficient investigations and on juries and trial judges to sift
evidence in order to dete rmine the facts and arrive at proper verdicts. As part of
the fact-finding process, these triers of fact must “distinguish the frivolous from the
substantial and the fraudulent from the meritorious.” … Experience has shown that the
courts are quite adequate for the task. Id. at 914-915.
Because there is no controlling precedent on the subje ct of parental immunity, [fn] we ne ed not
overrule any prior decisions. Rather, we simply decline to adopt the doctrine of parental immunity
as the law of the District of Columbia. We acknowledge that doctrine for what it is: an outdated
notion based on faulty premises. We se e it as a vestige of an era in which children were without
legal protection from the wrongs of their parents, and married women were without legal rights,
subordinate to the ir husbands, all in the name of family harmony. More spe cifically, we are persuaded
that section 895G of the Restatement *421 (Second) of Torts, SUPRA, IS JURISPRUDENTIALLY SOUND,
AND WE ACCEPT IT AS A CORRECT STATEMENT OF THE LAW APPLICABLE TO CASES SUCH AS
11

THIS.

10. We think it significant that such a possibility of conspiracy between husband and wife did not dissuade the Council of
the District of Columbia from abolishing interspousal immunity more than ten years ago. See note 1 [8], supra.
11. We emphasize that we are accepting section 895G in its entirety. We are aware that subsection (2) recognizes, or at least
assumes, that certain acts or omissions may be privileged or non-tortious by reason of the parent-child relationship. We
need not attempt in this case to identify the types of conduct that may be privileged or non-tortious under subsection
(2); that will have to be done in the future on a case-by-case basis. As the Restatement tells us, “[t]hese problems are
comparatively new to the courts as a result of the recent abrogation of immunity, and the courts have not yet worked
Immunities | 495

Thus we reject appellee’s argument that an unemancipated minor child should be barred, in the
interest of family unity, from suing his or her parent for negligence
. When a wrong has been
committed between parent and child, “the harm to the family relationship has already occurred;
and to prohibit reparations can hardly aid in restoring harmony.” [c]. We se e no reason, moreover,
to limit our holding to cases in which the parent-defendant has liability insurance, as some courts
have done. [fn] There can be no justification for fashioning different rules of law for the insured and
the uninsured. [c] The availability of insurance funds to satisfy a judgment should not determine the
viability of an action by a child against a parent (or vice versa), nor should the judgment necessarily be
limited to the amount of the insurance policy.
The order granting appellee’s motion for summary judgment is reversed. This case is remanded to the
Superior Court for further proceedings consistent with this opinion.
Reversed and remanded.
NEBEKER, Associate Judge, dissenting:
The majority gives all the appearances of being quite unsure about its new holding. In the face of a
division opinion limiting suits by issue to automobile accidents covered by insurance, Rousey v. Rousey,
499 A.2d 1199 (D.C.1985), the majority now retreats from that unusual view to general amenability to
suits by offspring. They then hedge, as does the RESTATEMENT, by hinting at unknown exceptions
where in the future we may conclude the case involves the type of conduct which may “on a case-bycase basis” be ide ntified as “privileged or non-tortious.” [c]. The court thus behaves like an ill-advised
legislature, acting broadly while it continues to study the ne ed to make e xceptions to the broad new
enactment. This, in my view, is a poor way to take such a serious step. The hedging also implicitly
recognizes that this question is for the legislature. Moreover, the majority chooses to ignore what to
me are obviously damaging consequence to family structure and a moral imperative that compel the
opposite conclusion.
In declining to adopt parental immunity, the majority disparages the wisdom of the past which
championed the family unit, as if a contrary modern view is obviously superior. The majority finds
solace in the fact that at common law there was no parental immunity and that children could
enforce their own contract and property rights and bring their own action in tort. Ante at 416–417.
This selective recourse to history ignores a body of law from the e cclesiastical courts where, in their
domain, such suits were unthinkable. See McCurdy, Torts Between Persons in Domestic Relation, 43
HARV.L.REV. 1030, 1060 n. 141 (1930). The majority criticizes an analogy to spousal immunity and
asserts that the rationales which support it are not applicable to parental immunity. [c] I agree with
this point. Because the common law view of the husband-wife relationship differed from that of the
parent-child, any justification by way of analogy is tenuous. Accepting this, however, I find somewhat
perplexing the majority’s process of rejecting parental immunity *422 by comparing it to the statutory
abolition of spousal immunity in the District of Columbia in 1976.

out a full analysis of the proper legal treatment.” RESTATEMENT, supra, § 895G, comment k. We defer that “full analysis”
until we are faced with a case that requires it.
496 | Immunities

But enough of their fallacious reasoning! The main concern is misguided policy. I view the fact that
parental immunity did not exist at common law to be irrelevant because “no American child tortiously
injured by his parents had ever sought to recover damages until late in the nine teenth century.”
Hollister, Parent-Child Immunity: A Doctrine in Search of Justification, 50 FORDHAM L.REV. 489, 498
(1981–1982). It seems that prior to 1891, our social and legal evolution had not “progressed” to the point
that a child, or more accurately one in concert with him, could or would consider suing a parent in
tort. The reason may have be en that our society tolerated “almost unbridled parental authority,” [c]
or that prior to our saturation with liability insurance, there was less incentive to sue. Of course,
collusive actions were not permitted. [c] In any event, it appears the legal profession and a family
oriented society simply deemed it unthinkable for a child to bring a tort action against his parent.
Thus, the testing of liability was simply not contemplated. Accordingly, a doctrine of immunity would
have been superfluous.
In 1891, when a tort claim was eventually brought by a daughter against her mother, the Supreme
Court of Mississippi promulgated the doctrine of parental immunity. Hewellette v. George, 68 Miss.
703, 9 So. 885 (1891). Although it has been attacked as an “exception to the general rule of liability
for negligently caused injury,” Hollister, supra, 50 FORDHAM L.REV. at 504, parental immunity is more
appropriately considered a judicial re sponse to the latter-day attempt to pit child against parent and
other family members. I see rejection of this immunity as part of the pandemic course to e xpand
compensation for injury to yet another outer limit.
The likelihood of harm to the family structure if parental immunity is rejected has summarily been
dismissed by the majority—in a manner similar to the decisions from other jurisdictions which have
undertaken to reject this immunity, see Petersen v. City and County of Honolulu, 51 Hawaii 484, ––––,
462 P.2d 1007, 1009 (1969). Moreover, I submit that pointing to the familial discord which may also
result from intentional, wanton or grossly negligent conduct is misdirected. The case before us is not
one of an intentional or criminally reckless nature. Rather, it stems from an activity which today is
essential to the functioning of a household—the operation of the family automobile. Anyone who has
reared children today can attest to the near indispensability of the family car or cars.
I note that the majority seems to hope that family discord from offspring suits will be avoided because
insurance will eliminate true adversity. It will not; and it will foster collusion. But liability insurance
should not serve as the basis for rejecting the doctrine of parental immunity in any event. The majority
notes the prevalence of liability insurance as its primary justification for creating new legal rights and
duties within the family. I believe it imprudent public policy to sanction a new area of tort liability on
the grounds that “[t]he availability of insurance relieves the parents of direct financial responsibility
for injuries sustained by their children….” [c]
The the ory of insurance is that it is supposed to give financial protection against the occurrence of
a known risk. Once a type of insurance e xists, it is not supposed to encourage the creation of new
actions at law. The rationale in this case says, in essence, that because liability insurance e xists, this
jurisdiction will now create a ne w *423 class of tort claimants who are eligible to recover because it is
hoped most claims will be covered. It would be just as well for the majority to justify its new rule on
the hope that suits will not be brought absent insurance coverage.

Immunities | 497

The whole principle of insurance be comes distorted when the presence of insurance encourages new
kinds of liability. As additional types of liability are permitted by the court, the insurance companies
must either raise policy premiums or exclude coverage as to that particular risk. This latter approach,
which is both logical and lawful, if chosen, would eliminate the very reason for the court’s holding in
12

the first place. In the me antime, we encourage collusive suits where no adversity exists, or pit family
members against each other in true adversity.
Permit me to ask some unanswered questions where insurance is not a part of the scheme. Does our
new rule permit actions for negligent failure to se ek medical treatment or diagnosis, or to provide
special education? Moreover, with abortions being lawful, may a child now sue a parent for wrongful
birth if he is born with a foreseeable defect? Through a “case-by-case” process, we will find out sooner
or later.
The rearing of a child is a unique and delicate responsibility. The te aching, nurturing and disciplining
functions performed by every parent vary. They are a function of the social, e conomic and religious
circumstance
s in e
very household. To subject a parent to liability based upon near indefinable
standards will, I fear, have a de trimental impact on the family unit. The threat of a tort suit could
shackle a parent and prevent the flexibility needed to exercise parental control. As a child progresses
through the

more

intractable

stage
s of adolescence, a parent’s fear of being sued must clearly

unde rmine the e xercise of parental authority, and thus the family structure. These concerns loom
larger as our society grows more litigious.
I fear the majority has thought precious little of the consequences. They would no doubt justify their
holding on the ground that they simply compensate injury by making the one at fault pay. But how will
this really work? In a family structure it is usual to have both parents share in the rearing function. If
one parent causes an injury and is at fault, does the other parent owe a duty to the injured child to
seek recovery? I suppose so, though we do not say so. If that parent, out of concern for other children
or simple de votion to the other parent, or negligence, fails to pursue recovery until a case cannot
be proved, what of that parent’s liability? Can an older child, upon reaching majority, sue within the
limitations period and deprive younger siblings of the family income or asse ts? I am sure the response
is—“we will de cide those cases later ‘on a case-by-case basis.’ ” Such tinkering with the already fragile
family structure by judges with no formal training or experience in such matters is ill-advised. It tears
at family unity. With or without liability insurance, it unavoidably pits one child against any others
for limited family resources and one parent against the other. At a time when families find it hard or
impossible to e xist without both parents working, we now create a competition for income within the
family. And insurance is not the palliative. When a claim is made, the policy can be canceled or the
premium increased. In automobile accidents this can be devastating to the family.

12. “Because a child has only limited knowledge and ability in legal matters, the decision to sue is usually made by his
parents.” Hollister, supra, 50 FORDHAM L. REV. at 500. See Streenz v. Streenz, 106 Ariz. 86, 88, 471 P.2d 282, 284 (1970)
(“Where [automobile liability] insurance exists ... in reality the sought after litigation is not between child and parent but
between child and parent's insurance carrier.”); Sorensen v. Sorensen, 369 Mass. 350, 362, 339 N.E.2d 907, 914 (1975)
(“When insurance is involved, the action between parent and child is not truly adversary....”).
498 | Immunities

Moreover, I anticipate that pressure to sue one or both parents will strain the moral fiber which holds
families together. Well-structured families will probably ignore our permissive holding. Those not so
stable will find little solace in their lucre when they discover the inevitable de cay in *424 their moral
fiber. Should one of a number of children get a greater share of family assets or in some other way
burden the others because one or both parents caused an injury? What “next friend” will make that
choice and at what price within the family? I cringe at this holding and what it can mean to our
most precious national resource—the family. It foists upon parents, or other family members such
as grandparents, aunts and uncles, a choice that can only be described as damnable. What we have
wrought I am not sure, but of this I am certain—it is an intruder into any family circle as much as any
burglar or disease. And what is worse, it rides a steed called law.
I opt for immunity and family unity; so I dissent.
BELSON, Associate Judge, with whom Chief Judge PRYOR joins, dissenting:
I write separately because I prefer to state narrowly the reason I think this court should not abrogate
the doctrine of parental immunity.[***]
[T]he United States Court of Appeals, by unmistakable implication, accepted the District Court’s
conclusion that minor children may not sue their parents in tort. Perchell v. District of Columbia, 144
U.S.App.D.C. 122, 123–24, (1971) The court expressly modified “[t]he doctrine of parental immunity as
applied in Dennis v. Walker ” to allow the defendant to sue for contribution from the minor plaintiffs’
father, despite the fact that parental immunity barred the minor plaintiffs themselves from suing him.
Id. at 124, 444 F.2d at 999. By so modifying the doctrine of parental immunity, the court implicitly
acknowledged its existence in this jurisdiction. Although not binding upon this court, [c] Perchell
reflects what the state of the law regarding parental immunity has been in the District of Columbia.
Given this jurisdiction’s consistent adherence, until now, to the doctrine of parental immunity, the
majority decision’s departure from the doctrine reflects a determination of public policy better suited
to consideration by the District of Columbia Council. As an elected legislative body, the Council is in a
better position to weigh competing policy considerations such as the potential for collusive lawsuits,
divisiveness in family *425 structures, and the need to compensate tort victims.
Note 1. What is the holding in this case? What is its practical effect? What rationales does it cite in
support of its ruling? What role does liability insurance play in its view of the issue?
Note 2. What do you suppose is the significance of the court’s stating that it is not overruling prior
case law but simply choosing not to adopt parental immunity? How is the majority’s view of this issue
different from the dissenting opinions on that point?
Note 3. What does the court mean by “general tort immunity between parent and child” when it writes
the following: “In 1977 the American Law Institute completely rejected general tort immunity between
parent and child when it published section 895G of the RESTATEMENT (SECOND) OF TORTS”?
Note 4. The most common justifications for adopting parental immunity have include d (1) maintaining
family harmony; (2) preserving parental authority over the discipline, supervision, and care

of

Immunities | 499

children; (3) preventing fraud and collusion between family members; and (4) protecting family
finances and resources from depletion in favor of one

child at the

e xpense of others. In many

jurisdictions, if any parental immunity has been retained, it is limited to the kinds of discretion
associated directly with parental choices (e.g. setting bedtimes, making nutritional choices, selecting
medical treatment) rather than with “garden-variety” or ordinary, non-parental acts of discipline and
supervision. Does this line-drawing seem to you to resolve the issue well? Why or why not?
Note 5. What concerns seem most to animate the dissent?
Note 6. Is the dissent correct that the majority is “creating new legal rights and duties” within the
family, and in its assertion that it does so on the basis of the availability of liability insurance? The
dissent writes: “The majority notes the prevalence of liability insurance as its primary justification for
creating new legal rights and duties within the family. I believe it imprudent public policy to sanction
a new area of tort liability on the grounds that “[t]he availability of insurance relieves the parents of
direct financial responsibility for injuries sustained by their children….” [c] “Once a type of insurance
exists, it is not supposed to encourage the creation of new actions at law.”
Note 7. The se cond, shorter dissent makes two main points. What are the y? Can you see how the
second bolsters the first?

Immunity and Allocation of Liability
One challenge associated with identifying immunities in a given case is the e ffect they may have when
multiple parties are at fault and one of them is protected by an immunity. This next case illustrates
the challenging policy issues at the intersection of immunity, comparative fault and joint and several
liability.

Smelser v. Paul, Supreme Court of Washington (2017)
(188 Wash.2d 648)
*649 This case concerns the intersection of the doctrine of parental immunity with the system of
proportionate liability under chapter 4.22 RCW. Two-year-old *650 Derrick Smelser was run over
while playing in his yard by a car driven by the defendant, Jeanne Paul. At trial, Paul was allowed
to assert an affirmative defense that the child’s father was partially at fault based on negligent
supervision of the child. Instructed under RCW 4.22.070, the jury determined the father was 50
percent at fault. However, the trial court refused to enter judgment against the father based on the
parental immunity doctrine. The result was that the child’s recovery against the driver was reduced
by 50 percent. The Court of Appeals affirmed. Smelser v. Paul, noted at 193 Wash.App. 1014, 2016
WL 1306678, review granted, 186 Wash.2d 1002, 380 P.3d 453 (2016). We reverse and hold that under

500 | Immunities

chapter 4.22 RCW and our case law, no tort or fault exists based on the claim of negligent supervision
by a parent.
When he was two years old, Derrick

13

was playing in his father, Ronald Smelser’s, driveway.

Respondent Paul, the father’s then girlfriend, had been visiting and had parked her truck in the
driveway. As Paul started to drive away, she hit Derrick, who “was pulled under the vehicle and
dragged for a distance,” and suffered severe injuries. Clerk’s Papers (CP) at 300. [Remaining references
to the record omitted] Derrick’s father was home at the time but did not witness the accident.
Derrick’s five-year-old brother did witness the accident, and when the father heard Derrick’s brother,
Dillon, screaming, he looked in that direction and saw Derrick under Paul’s truck.
This lawsuit was brought on behalf of Derrick against Paul based on negligence. Paul admitted the
basic facts of the accident, but asserted as an affirmative defense that Derrick’s father (who was not
named as a defendant in the original complaint) was either partially or entirely responsible for the
injuries based on a theory of negligent supervision. Derrick moved for summary judgment, arguing
that *651 no apportionment of fault to the father was allowable as a matter of law. The court denied
summary judgment. Derrick thereafter amended his complaint to include the father as a defendant.
The amended complaint did not allege that the father was negligent or otherwise at fault in any way,
but stated only that “Defendant Paul also contends that Defendant Ronald Smelser was concurrently
negligent and/or engaged in willful misconduct which was a proximate cause of Plaintiffs’ injuries.”
The father never appeared as a party in the suit, and the court entered an order of default against him.
The case proceeded to a jury trial. Although the father had never appeared as a party, he was called
as a witness. Derrick’s theory of the case was that Paul was the only one who was negligent, that her
negligence was the sole proximate cause of Derrick’s injuries, and that the jury was instructed that
Derrick had the initial burden of proving that Paul was negligent and had caused his injuries. The jury
was also instructed to then consider whether Paul had met her burden of proving, as an affirmative
defense, that the father was also negligent. The jury was permitted to apportion fault to the father only
if Paul met her burden of proof. The jury found that both Paul and the father were negligent and that
both proximately caused Derrick’s injuries. On a special verdict form, the jury attributed 50 percent of
the damages to Paul and 50 percent to the father. Paul proposed the court enter a judgment against
her only for the 50 percent of damages apportioned to her by the jury. Derrick objected, proposing
that “a ‘joint and several’ Judgment be entered against both Jeanne Paul and Ronald Smelser for the
entire amount of Derrick’s damages.” Paul, however, argued that a judgment could not be entered
against the father due to parental immunity, and noted that joint and several liability is allowed only
where there are two or more “defendants against whom judgment is entered.” RCW 4.22.070(1)(b).
*652 The court entered judgment as proposed by Paul for 50 percent of the damages found by the
jury. It did not enter any judgment against the father. The Court of Appeals affirmed. We granted
review [to determine] … [w] hether, consistent with the parental immunity doctrine, a parent can be
assigned fault under chapter 4.22 RCW based on negligent supervision. … This case requires us to
consider the proportionate liability scheme in chapter 4.22 RCW in light of the common law doctrine

13. We refer to Derrick by his first name for clarity.
Immunities | 501

of parental immunity. Chapter 4.22 RCW was enacted in 1986 and, in general terms, was intended to
modify certain principles of tort law. Under specific situations, the statute established a system of
proportionate fault, modifying the rule of joint and several liability. In situations involving a fault-free
plaintiff, joint and several liability remains as to persons or entities against whom judgment is entered.
The centerpiece of chapter 4.22 RCW is RCW 4.22.070. RCW 4.22.070(1) provides:
In all actions involving fault of more than one e ntity, the trier of fact shall determine the
percentage of the total fault which is attributable to e very entity which caused the claimant’s
damages except entities immune from liability to the claimant under Title 51 RCW. The sum
of the percentages of the total fault attributed to at-fault entities shall equal one hundred
percent. The entities whose fault shall be determined include the claimant or person suffering
personal injury or incurring property damage, defendants, third-party defendants, entities
released by the claimant, entities with any other individual defe nse against the claimant, and
entities immune from liability to the claimant, but shall not include those e ntities immune
from liability to the claimant under Title 51 RCW. Judgment shall be entered against each
defendant except those who have be en released by the claimant or are immune from liability
to *653 the claimant or have prevailed on any other individual defe nse against the claimant
in an amount which represents that party’s proportionate share of the claimant’s total
damages. The liability of each defendant shall be several only and shall not be joint except:
….
(b) If the trier of fact determines that the

claimant or party suffering bodily injury or

incurring property damages was not at fault, the defendants against whom judgment is
entered shall be jointly and severally liable for the sum of their proportionate shares of the
claimants [claimant’s] total damages.
(Second alteration in original) (emphasis added). Under RCW 4.22.070, the
apportionment is that all tortfeasors responsible

to the

foundation of fault

injured plaintiff are identified and a

percentage of fault is assigned among them. Relying on the clause “entities immune from liability to
the claimant,” the lower courts allowed the jury to apportion fault to the father based on a claim of
negligent supervision.
Before applying RCW 4.22.070, a preliminary issue that must be resolved is whether a tort duty exists
14

from which fault can be found for negligent parenting. The trial court and Court of Appeals failed to
first determine whether a parent can be liable in tort for his or her child’s injuries based on a theory of
negligent supervision. While cases have described the principle as a form of “parental immunity,” what

14. RCW 4.22.015 defines “fault” as “acts or omissions, including misuse of a product, that are in any measure negligent or
reckless toward the person or property of the actor or others, or that subject a person to strict tort liability or liability
on a product liability claim. The term also includes breach of warranty, unreasonable assumption of risk, and
unreasonable failure to avoid an injury or to mitigate damages. Legal requirements of causal relation apply both to fault
as the basis for liability and to contributory fault. “A comparison of fault for any purpose under RCW 4.22.005 through
4.22.060 shall involve consideration of both the nature of the conduct of the parties to the action and the extent of the
causal relation between such conduct and the damages.”
502 | Immunities

the cases establish is that no tort liability *654 or tort duty is actionable against a parent for negligent
supervision. Simply stated, it is not a tort to be a bad, or even neglectful, parent.
We comprehensively discussed the cases establishing this rule in Zellmer v. Zellmer, 164 Wash.2d 147,
188 P.3d 497 (2008). Zellmer involved a wrongful death claim brought based on the drowning death of a
child while under the stepfather’s care. The suit alleged negligence and negligent supervision claims.
We were urged to abolish our long standing parental immunity doctrine. We rejected that argument
and held the claim was barred. Important to the analysis and conclusion in Zellmer is the analysis of
our case law and the principles we have established.
We reasoned that:
this court has consistently held a parent is not liable for ordinary negligence

in the

performance of parental responsibilities. Jenkins [v. Snohomish County Pub. Util. Dist. No. 1
], 105 Wn.2d 99 [, 713 P.2d 79 (1986)] (disallowing contribution claim where parents allowed
child to wander free in neighborhood; child electrocuted at utility power station); Talarico v.
Foremost Ins. Co., 105 Wn.2d 114, 712 P.2d 294 (1986) (disallowing negligent supervision claim
where parent started backyard fire then left three-year-old son unattended, resulting in
severe bums); Baughn v. Honda Motor Co., 105 Wn.2d 118, 119, 712 P.2d 293 (1986) (disallowing
contribution claim where parents allowed sight-impaired child to ride motorbike, resulting
in fatal crash); Stevens v. Murphy, 69 Wn.2d 939, 421 P.2d 668 (1966) (disallowing suit against
divorced parent who negligently injured children while transporting them home from a
scheduled visitation), [c]]; De Lay v. De Lay, 54 Wn.2d 63, 337 P.2d 1057 (1959) (disallowing
negligence action against parent who instructed son to siphon gas, resulting in bum injuries);
Cox v. Hugo, 52 Wn.2d 815, 329 P.2d 467 (1958) (disallowing contribution claim against parent
who failed to prevent child from wandering into neighbor’s yard where she was burned by
trash fire). [c].
*655 Zellmer went on to recognize when this principle applies:
There now appears to be ne arly universal consensus that children may sue their parents for personal
injuries caused by intentionally wrongful conduct. However, the

overwhelming majority of

jurisdictions hold parents are not liable for negligent supervision of their child, whether stated in
terms of a limited parental immunity (among jurisdictions that have partially abrogated the parental
immunity doctrine), parental privilege (among those that either abolished the immunity doctrine
outright or declined to adopt it in the first instance), or lack of an actionable parental duty to
supervise. … [T]he primary objective of the modern parental immunity doctrine is to avoid undue
judicial interference with the e xercise of parental discipline and parental discretion. This rationale
remains as vital today as it was in 1986. Parents have a right to raise their children without undue state
interference. … Zellmer equated the doctrine to other areas of the law where no tort action exists.
[***]
What our cases establish is that no tort claim exists based on negligent parental supervision. Where
no tort exists, no legal duty can be breached and no fault attributed or apportioned under RCW
4.22.070(1).
Immunities | 503

Though parental negligence is denominated an “immunity,” we have emphasized that it is similar
to how courts characterize

discretionary governmental decision-making under the doctrine

of

“discretionary immunity.” Zellmer, 164 Wash.2d at 159-60, 188 P.3d 497 (recognizing that “[t]he parental
immunity doctrine is similar to the ‘discretionary functions’ exception).
[In a prior case, we] reasoned:
Practically all jurisdictions that have broken varying amounts of ground in the
abdication of governmental immunity from tort liability have

judicially, if not

statutorily, recognized that the legislative, judicial, and purely executive processes
of government, including as well the essential quasi-legislative and quasi-judicial
or discretionary acts and decisions within the

framework of such processes,

cannot and should not, from the standpoint of public policy and the maintenance
of the integrity of our system of government, be characterized as tortious however
unwise, unpopular, mistaken, or neglectful a particular decision or act might be.
Evangelical United, 67 Wash.2d at 253, 407 P.2d 440 (citations omitted). The direct link between such
immunity and parental immunity recognized in Zellmer makes clear that just as it is not a tort for
government to govern, it is not a tort for parents to parent. Bad parenting cannot be subje ct to
“judicial second-guessing … through the me dium of a tort action.” Zellmer, 164 Wash.2d at 160, 188 P.3d
497. …
Since 1896, Washington has recognized that the negligence of a parent cannot be impute d on a child.
Roth, 13 Wash. 525, 43 P. 641. The interpretation of RCW 4.22.070 we adopt today ensures that RCW
4.22.020 and our common law *659 principles are not violated—a parent cannot be an at-fault party
based on negligent supervision, thus, their negligent actions cannot be imputed on their child.
Under chapter 4.22 RCW, a determination of fault must precede any analysis of immunity; a parent
is not liable for a child’s injuries based on a theory of negligent supervision. Our cases consistently
recognize

no tort action exists as a matter of law. While

we

call this “immunity,” it is akin to

discretionary governmental immunity, judicial and quasi-judicial immunity, and similar doctrines
establishing that the

conduct in question is simply not tortious. Thus, there

is no fault to be

apportioned under RCW 4.22.070.
We reverse and remand to the trial court with instructions to enter judgment against Paul for the
entire amount of Derrick’s damages found by the jury.
WE CONCUR: Owens, J.; Stephens, J.; Wiggins, J.; Gordon McCloud, J.
YU, J. (dissenting)
An innocent child is badly injured through no fault of his own. His injuries were caused by the
combined fault of two different people. One of those pe ople is immune from liability to the child. Thus,
who should bear the financial consequences of that person’s immunity? Should the child be forced to
bear the consequences and recover the damages caused only by the nonimmune pe rson’s fault? Or

504 | Immunities

should the nonimmune pe rson be forced to bear the consequences and pay the child’s full damages,
including those caused by the immune person’s fault?
The majority adopts the latter approach, and if we were considering this question in the first instance
as a matter of policy, I would too. Unfortunately, it is not our decision in the first instance, and we
cannot decide it as a matter of policy. The legislature has cle arly determined that the plaintiff (in this
case, the child) must bear the financial consequences where fault is apportioned to an immune entity
*660 pursuant to RCW 4.22.070. I therefore respectfully dissent.
As the majority rightly notes, we have previously held that a parent cannot be liable in tort for
injuries to his or her child if those injuries were caused by negligent parenting. Zellmer v. Zellmer,
164 Wash.2d 147, 155, 188 P.3d 497 (2008). But unlike a direct claim by a child or a contribution claim
by a third party, allocating fault to an immune parent does not render the parent liable. In fact,
RCW 4.22.070(1) expressly forbids entering judgment against an immune entity. The soundness of the
parental immunity doctrine is not at issue in this case.
Rather, the actual issue presented is whether Jeanne Paul was properly allowed to raise an affirmative
defense that pointed to another entity (who happened to be an immune parent) whose factual fault
limited Paul’s liability to the damages actually caused by her own negligence. […]
I agree with the majority as a matter of policy, but I cannot agree with it as a matter of law. I therefore
respectfully dissent.
Note 1. The court states that “the primary objective of the modern parental immunity doctrine is to
avoid undue judicial interference with the e xercise of parental discipline and parental discretion.” On
these facts, is the conduct of the parent an “exercise of parental discipline and discretion”? Why or
why not?
Note 2. Can you articulate what this phrase me ans: “Washington has recognized that the negligence
of a parent cannot be imputed on a child”? What effect does it have in this case?
Note 3. This case provides an example of at least three conflicting purposes: protecting parents from
immunity, compensating victims for injurious harm they suffer, and allocating fault precisely and fairly
in the realm of comparative fault. Does the court strike the right balance, normatively, in your view?
Do you see alternatives? Would these alternatives consist of acts by the legislature, decisions by
courts, or some other alternative?
Note 4. What do you make of the dissent’s last line? What sort of argument is Justice Yu making?
Note 5. Which theories of justice, or which of tort law’s purposes, seem most to be driving this
decision?

Immunities | 505

3. Governmental Immunity
At common law governments enjoyed sovereign immunity from tort liability, based on the ide a of
the king’s divinity (per the Latin maxim, rex non potest peccare or the king is incapable of sinning/
doing wrong). However, the United States federal government, as well as states and tribal government,
have all chosen to limit or waive this immunity in some way (through the state constitution and/or
statute). These states tend to retain immunity with respect to core governmental functions, however.
Judges cannot be sue d over their judicial opinions and legislators cannot be sue d over the votes they
cast or the legislative de cisions they make. There are two kinds of immunity: absolute immunity and
qualified immunity. You can think of the retention of immunity in certain areas as absolute when
the actions are critically important to government we protect them from liability at all costs, no
matter how negligent or malicious the acts may be. (There may be other solutions to redress such
conduct, such as voting people out of office, demoting or firing them where possible, or, in the e arliest
days perhaps, grislier political solutions such as outright coup d’état.) Qualified immunity exists in
connection with a statutory waiver or creation of liability, or pursuant to case law. It tends to be
heavily fact specific, and conduct can matter a great deal here, depending on the particular scenario.
The scope of the immunity is usually tied to the governmental function. For instance, the government
is immune from suit against a United States postal worker with respect to their mail delivery (no
negligence claims for mis-delivered mail, for instance, no matter how badly bungled the duty might
be) but not for their vehicular accidents. Indeed, Congress passed the Federal Torts Claims Act
to waive the federal government’s immunity in part to clarify this bifurcation of legal treatment
pertaining to postal delivery, as the Supreme Court stated in resolving that a woman injured by a
negligently left stack of mail could recover:
“[O]ne of the FTCA’s purposes was to waive the Government’s immunity from liability
for injuries resulting from auto accidents involving postal trucks delivering—and thus
“transmitting”—the mail. Nothing in the statutory text supports a distinction between
negligent driving, which the Government claims relates only circumstantially to the mail,
and Dolan’s accident, which was caused by the

mail itself. In both cases the postal

employee acts negligently while transmitting mail. In addition, focusing on whether the
mail itself caused the

injury would yield anomalies, perhaps making liability turn

on, e.g., whether a mail sack was empty or full. It is more likely that Congress intended to
retain immunity only for injuries arising because mail either fails to arrive or arrives late,
in damaged condition, or at the wrong address, since such harms are primarily identified
with the Postal Service’s function of transporting mail. The Government claims that, given
the Postal Service’s vast operations, Congress must have intended to insulate deliveryrelated torts from liability, but § 2680(b)’s specificity indicates otherwise. Had Congress
intended to preserve immunity for all delivery-related torts, it could have use d sweeping
language similar to that used in other FTCA exceptions, e.g., § 2680(i). Furthermore, losses
of the type for which immunity is retained under § 2680(b) are at least to some degree
avoidable or compensable through postal registration and insurance. The Government
raises the specter of frivolous slip-and-fall claims inundating the Postal Service, but that
506 | Immunities

is a risk shared by any business making home deliveries. Dolan v. U.S. Postal Serv., 546 U.S.
481, 482, 126 S. Ct. 1252, 1254 (2006)
Dolan treats the government’s delivery of the mail as (i) a governmental service with respect to
the mail, and as (ii) “any business making home deliveries” with respect to the mail’s home delivery.
Generally, as this shows, the immunity drops away when the government’s conduct is not in some way
special to the role of a governmental function. Relatedly, many disputes over governmental immunity
involve vicarious liability for the governmental employees whose conduct is at issue in such cases.
(You may recall the “zany meat processing plant hypo” in which a USDA employee jumpe d on the back
of a friend, pulled the wool over his eyes, and accidentally caused him to fall onto a meat hook and
sustain significant injuries. The issue there in Lambertson v. United States was whether the conduct
qualified as a battery, versus negligence; see Module 2’s materials on battery. However, there was
another pair of key issues we did not reach: whether the government’s immunity would apply to the
conduct, and if not, whether vicarious liability would attach or whether it was outside the scope of
the employment from the start.)
Our first case

turns to the

scope

of liability applicable

to the

government with respect to the

discretion of the U.S. Forest Service in dealing with wildlife in parks.

The Discretionary Function Exception to Governmental Immunity
George v. U.S., District Court of M.D. Alabama, Fourth Division (1990)
(735 F. Supp. 1524)
The cases at bar arise from an alligator attack on Plaintiff, Kermit H. George , while he was swimming
in the Open Pond Recreation Area of the Cone cuh National Forest. Plaintiff, Janet H. George, seeks
recovery for loss of consortium. Plaintiffs bring this action against the United States of America
pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq. [hereinafter the Act]. [***] [Court’s
Note: Pursuant to the agreement of the parties, this Court bifurcated the issue of damages pending a
determination of whether liability existed.]
Mr. George was injured on July 26, 1986, in the Open Pond Recreation Area of the Cone cuh National
Forest. The recreation area, which includes a designated swimming area, is owned and operated by
the United States Forest Service. On the day of the attack, Mr. George and his unle ashed dog entered
the area from the rear entrance and proceeded around the park to the swimming area. Mr. George’s
dog preceded Mr. George into the water and then exited sometime after Mr. George had waded
approximately chest deep into the designated swimming area. Shortly after his entrance into the
water, Mr. George was attacked by a large alligator, which ultimately severed Mr. George’s right arm
at the shoulder.
The Forest Service officials admit that they had knowledge of the presence in the Ope n Pond Area of
Immunities | 507

the 11–to–12–foot alligator which attacked Mr. George. The evidence showed that, of the 74 confirmed,
nonfatal alligator attacks in the neighboring State of Florida, 53 were committed by alligators in excess
of five feet in length. Furthermore, Forest Service officials admit *1526 that they had received several
complaints concerning the alligator prior to the attack on Mr. George. Additionally, the Government
admits that it neither posted signs warning of the alligator nor attempted to remove said alligator.
Joe Brown, Forest Supervisor of all national forests in Alabama, Larry Hedrick, Wildlife Biologist for the
Forest Service, Buddie Risner, Acting District Ranger for the Cone cuh National Forest, John Maurer,
Forest Technician, and Harris LeMaire, Forest Technician, were all employed by the United States
Forest Service and were working within the scope of their employment as federal employees at all
times relevant to these cases. All were aware of the presence of a large alligator, presumably the
one which attacked Mr. George, in and near Open Pond within the se ven-week period preceding the
attack on Mr. George, which occurred on July 26, 1986. Their knowledge came from the following
reports and observations [as well as at least 6 prior instances in which these entities saw firsthand, or
received and reported complaints and concerns about large alligators, including at least two reports
of alligators following people (one of which stated that a woman was followed 100 years by a large
alligator in the e dge of the water). These reports repeatedly stated that the alligators appeared to have
no fear of humans.]
During June and July, 1986, [various U.S. Forest Service officials] discussed the presence
of a large alligator in and near Open Pond as reported and observed and the appropriate
course of action to take regarding the alligator. [They] decided to take no imme diate
action other than monitoring the situation for several policy reasons, including their
information that the alligator [***] had been in the area for many years and that the
alligator had not attacked humans or domestic animals. They also were aware that the
alligator was a protected species. [They] also believed that posting warning signs might
suggest to the public that all potential natural dangers or risks would be poste d. Finally,
they thought that the risk of an alligator attack was minimal and that warning signs would
unnecessarily frighten the public.
[T]he Government contends that the discretionary function exception [28 U.S.C. § 2680(a)] bars
recovery. Finally, the Government asserts that Mr. George was contributorily negligent in either
allowing his dog to enter the park unleashed, which was in violation of posted park regulations, or
going swimming in an area Mr. George knew to be inhabited by alligators. [c]
DISCRETIONARY FUNCTION. Title 28 U.S.C. § 2680(a), provides that jurisdiction pursuant to 28 U.S.C.
§ 1346(b) shall not apply to:
“Any claim based upon an act or omission of an employee

of the

Government,

exercising due care, in the execution of a statute or regulation, whether or not such
statute or regulation be valid, or based upon the e xercise or performance or the failure
to exercise or perform a discretionary function or duty on the part of a federal agency
or an employee of the Government, whether or not the discretion involved be abused.”
*1528 Plaintiffs have alleged that Defendant was negligent in failing to warn users of the Open Pond
508 | Immunities

area of the presence of alligators and/or failing to remove the alligator that attacked Mr. George
in the swimming area. Defendant argues that such decisions are discretionary and, thus, insulated
from liability by virtue of § 2680. The thrust of Defendant’s argument stems from its contention that
the forest officials charged with supervision of the Cone cuh National Forest were of the opinion
that neither the alligator which attacked Mr. George nor any other alligator presented any danger
to the persons who used the recreation areas. In support of this contention, Defendant introduced
testimony by several forest officials that there had be en only one confirmed alligator attack on a
human in the Cone cuh National Forest prior to the attack on Mr. George. Furthermore, the prior
attack had been instigated by a blind alligator with a clubfoot which, subsequent to the attack, was
captured and transported to South Carolina.

15

The forest officials admit that they were aware of the presence of the alligator which attacked Mr.
George for some time but that this particular alligator had exhibited no signs of aggressive behavior
toward humans. Additionally, the

forest officials state

the y had no knowledge

of any incidents

concerning the alligator that would require them to take remedial action.
Forest officials based their determination on the fact that the alligator which attacked Mr. George
had merely been following park guests and employees. However, at least one witness, Warren Brown,
testified that, while he was snorkeling in Open Pond, an alligator chased him onto the shore and
“hissed” at him. Mr. Brown reported this incident to Forest Service officials sometime in 1983 or 1984.
Additionally, Plaintiffs’ expert, Dr. Robert Mount, testified that alligators typically catch their prey by
stealth as opposed to exhibiting obvious aggressive behavior.
Upon considering whether or not remedial measures were required, forest officials determined that
the alligator(s) posed no threat to the park visitor or, at least, no more of a threat than poisonous
snakes and other natural hazards which one would expect to be present in a national forest located
in South Alabama. Based on these facts, coupled with specific regulations dealing with the removal
of alligators, Defendant argues that the forest officials’ decision to neither remove the alligator, erect
barriers around the designated swimming area, nor to post any warning signs was a discretionary
function and, as such, shields the Government by virtue of § 2680(a), from tort liability under the Act.
This Court finds by a preponderance of the e vidence that at least six incidents of aggressive alligator
behavior had been reported to various forest officials. Additionally, the District Ranger of Conecuh
National Forest from November, 1975, until May, 1986, William Gilder, testified that he reported the
alligator problem to the Forest Service he adquarters in Montgomery by letter of October 9, 1985, and
suggested that signs be poste d. Accordingly, this Court must dete rmine if the discretionary function
doctrine bars Plaintiffs’ instant suit, notwithstanding this Court’s finding that the Forest Service had
actual knowledge of the alligator problem and failed to take any corrective or preventative measures.

15. The evidence showed that Donna Jean Loman was attacked by this alligator in 1981. After the attack, this particular
alligator was captured and released five miles from Open Pond in Yellow River. In 1983, another swimmer claimed that
he was bitten on the arm by an alligator. Mr. John Maurer, Forest Technician at the Conecuh National Forest in 1983,
investigated his allegations and concluded that he had not been attacked by an alligator but, rather, had been stabbed in
the arm with a barbecue fork by his wife during a domestic dispute. Notwithstanding Mr. Maurer’s conclusions as to that
incident, the clubfooted alligator was again trapped and removed to South Carolina.
Immunities | 509

*1529 The hallmark case e xpounding on and interpreting the discretionary function exception of §
2680 is Dalehite v. United States, 346 U.S. 15, 35–36, 73 S.Ct. 956, 967–968, 97 L.Ed. 1427 (1953), wherein
the Court stated:
“It is unnecessary to define, apart from this case, precisely where discretion ends. It is
enough to hold, as we do, that the ‘discretionary function or duty’ that cannot form a
basis for suit under the Tort Claims Act includes more than the initiation of programs
and activities. It also includes determinations made by executives or administrators
in establishing plans, specifications or schedules of operations. Where there is room
for policy judgment and decision there is discretion. It necessarily follows that acts of
subordinates in carrying out the operation of government in accordance with official
directions cannot be actionable.”
In finding that no liability e
xisted with respect to a fertilize
r e
xplosion, the Dalehite Court
distinguished between decisions “made at a planning rather than operational level.” Id., at 42, 73 S.Ct.
at 971. The Dalehite Court further found that the Government had no knowledge of a probable danger
with respect to the handling of the fertilizer. Id.
The Supreme Court in [***] Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531
(1988) … further refined the factors to be considered in determining whether the Government’s
conduct is protected by § 2680. The Court stated:
“[***] [C]onduct cannot be discretionary unless it involves an element of judgment or
choice. [c] Thus, the discretionary function exception will not apply when a federal
statute, regulation, or policy specifically prescribes a course of action for an employee to
follow. In this event, the employee has no rightful option but to adhere to the directive.
And if the employee’s conduct cannot appropriately be the product of judgment or
choice, then there

is no discretion in the

conduct for the

discretionary function

exception to protect. [c]. * * *
“Moreover, assuming the challenged conduct involves an element of judgment, a court
must determine whether that judgment is of the kind that the discretionary function
exception was designed to shield. The basis for the discretionary function exception was
Congress’ desire to ‘prevent judicial second-guessing of legislative and administrative
decisions grounded in social, economic, and political policy through the me dium of
an action in tort.’ [c] The

e xception, properly construed, therefore, protects only

governmental actions and decisions based on considerations of public policy. … (‘Where
there

is room for policy judgment and decision there

is discretion’). In sum, the

discretionary function exception insulates the Government from liability if the action
challenged in the case involves the permissable exercise of policy judgment.” [c]
The te st to be applie d to the cases at bar is, thus, whether the forest officials had discretion to make
the choice of not taking any remedial measures with respect to the alligator problem, and, if so,
whether such choice was one which Congress intended to shield from liability by virtue of § 2680(a).

510 | Immunities

[***] In Bowman v. United States, 820 F.2d 1393 (4th Cir.1987), plaintiff drove his vehicle off a federallycontrolled parkway in the Shenandoah National Park. Id., at 1393. The plaintiff contended that the
Government was negligent in failing to erect guardrails along the parkway or in failing to post signs
warning of the ste ep embankment. The Court, in affirming the district court’s dismissal of the case,
held that the discretionary function doctrine barred plaintiff’s suit. Id., at 1395. The Court stated that
whether the decision to take no action “grew out of a lack of financial resources, a desire to preserve
the natural beauty of the vista, a judgment that the hazard was insufficient to warrant a guardrail,
or a combination of all three is not known. What is obvious is that the de cision was the result of a
policy judgment.” Id. However, the Court clearly pointed out that the danger was open and obvious
and, further, that the primary purpose of the parkway was “not to facilitate transportation and travel”.
In the cases at bar, the presence of the alligator was not open and obvious to a person who chose to
use the swimming area. Furthermore, one of the primary purposes (if not the primary purpose) of the
national forest was to provide a recreation area for individuals who chose to visit the park. These two
factors clearly distinguish Bowman from the instant cases. [***]
In the cases at bar, several of the forest officials testified that the alligator involved in this attack had
lost his fear of man. Therefore, Defendant consciously disregarded a known risk by failing to take any
steps whatsoever to protect users of the swimming area.
Based on the authority cited hereinbefore, it is the opinion of this Court that *1533 no reasonable
range of choices existed as to the failure to take some action and, thus, the discretionary function
exception is inapplicable. 28 U.S.C. § 1346(b) provides:
“Subject to the provisions of Chapter 171 [discretionary function exception] of this title,
the district courts * * * shall have e xclusive jurisdiction of civil actions on claims against
the United States, * * * for injury * * * or death caused by the negligent or wrongful
act or omission of any employee of the Government while acting within the scope of
his office or employment, under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of the place where
the act or omission occurred.”
In this Court’s opinion, the fact that the Government chose not to guard or warn of the alligator(s)
does not invoke the protection of § 2680(a). Based on the e vidence presented to this Court, no element
of choice was presented when the Government failed to remove or warn of the presence of alligator(s)
in the swimming area. Thus, § 2680(a) does not apply. Since the danger presented by the reptile(s) was
known by the forest officials, there was no discretion to fail to take any remedial measures. Surely,
it cannot be contended that the forest officials had discretion to decide whe ther overriding policy
considerations of protecting the alligator(s) and the natural state of the area outweighed the safety of
humans using the designated swimming area. Despite the fact that regulations were in place to not
only protect the alligator(s), which at the time of this incident were on the e ndangered species list,
but to also preserve the natural state of the park, this Court finds that the e xistence of such does not
invoke the protection of § 2680 in derogation of the rights of humans.
Irrespective of the e xistence of such regulation and the interpretation thereof, it cannot be gainsaid
Immunities | 511

that the Government, the same as a private individual, is under a duty to protect others from hidden
dangers they are unaware of when such dangers pose a significant risk of serious bodily injury or
death. Thus, no choice presented itself to the forest officials as to whether or not to take remedial
measures to protect the individuals using the area.
This Court concedes that the de cisions of whether to have a swimming area and what measures to
take to protect individuals once the alligator problem arose were vested within the sound discretion
of the Forest Service and, thus, protected from “judicial second-guessing” by § 2680. However, the
decision to do nothing in spite of the known danger was not an option, in this Court’s opinion, the
Forest Service had available to them. To contend that the de cision to do nothing was discretionary
because the Forest Service was under an affirmative duty to protect the alligator(s) and the scenic
beauty of the park is ludicrous. If this Court were to hold that the discretionary function exception
barred Plaintiffs’ suits, it would, in effect, be elevating the well-being of an alligator to a level deserving
more protection than that of a human. The park was obviously built to provide a recreational area
for those de siring to use such, not as a wildlife habitat where the safety of humans through their
incidental use takes a back seat to the vie wing of reptiles in their natural habitat. If the Forest Service
were desirous of this result, it would not have created the recreational areas. The de cision to do
so was discretionary, but once the de cision was made, the Forest Service was under a duty to act
reasonably for protection of humans, particularly against hidden dangers known to the Service. Failing
such standard, the Government is liable to Plaintiffs in the cases at bar. Accordingly, it is the opinion
of this Court that no reasonable range of choices existed with respect to the Forest Service’s inaction,
and, as such, the discretionary function doctrine of 28 U.S.C. § 2680(a) is inapplicable. Therefore, this
Court finds that the Government’s discretionary function defense must fail.
[***] CONTRIBUTORY NEGLIGENCE. Defendant’s final arguments in support of a finding in its favor
concern two separate and independent contentions of contributory negligence on the part of Mr.
George. Defendant’s first contention is that Mr. George was aware of the presence of alligator(s) in
Open Pond and, thus, assumed the risk of injury when he entered the swimming area. Defendant’s
second theory of contributory negligence arises from Mr. George’s failure to have his dog on a le ash
while in the park which, thus, allowed the dog to precede Mr. George into the swimming area.
Defendant contends that the presence of the dog attracted the alligator into the swimming area. This
Court is of the opinion that both of Defendant’s contentions are without merit.
Mr. George testified that he kne w alligators were present in Open Pond but that he was unaware that
there were any the size of the reptile that took his arm. This Court finds by a preponderance of the
evidence that Mr. George was not aware that an alligator approximately 11 feet in length inhabited the
Open Pond waters. Furthermore, this Court finds that Mr. George had no knowledge of the danger
presented by his entering the swimming area. Thus, this Court finds that Mr. George did not assume
the risk of his injury by entering the swimming area on July 26, 1986, notwithstanding his knowledge
of the presence of alligators in Open Pond.
As briefly set forth previously, Defendant’s second theory of contributory negligence arises from the
fact that Mr. George violated park regulations by allowing his unleashed dog to accompany him into
the park on the occasion in question. The asserted contributory negligence is that Mr. George violated
the National Park’s leash law and that this violation was a proximate cause of the loss of his arm
512 | Immunities

and related damages. The fact that Mr. George’s dog violated regulations by being unleashed is and
was of little interest to *1536 this Court or to the subje ct alligator. It may be spe culated that the
dog’s presence lured the alligator to Mr. George. There is some e vidence that alligators are known to
enjoy dog meat, but the preponderance of the e vidence shows that alligators are not discriminatory
in their tastes and are well known to dine on whatever is convenient. The presence in this alligator’s
stomach of fish stringers, a broken bottle ne ck and a pine cone is ample e vidence that, had the
dog been convenient, the le ash would not have interfered with the alligator’s breakfast, whether or
not this particular alligator had a preference for dog meat. This Court finds that the fact, that Mr.
George violated park regulations by not keeping his dog on a leash in the park, was not a proximate or
contributing cause to his injuries and damages.
Therefore, this Court finds that the Government is liable to the Plaintiffs. An Order will be entered in
accordance with this Opinion.
Note 1. The court articulates the two-step test for applying the discretionary function exception: (1)
whether the officials in question had discretion to make choices and (2) whether such choice was one
which Congress intended to shield from liability by virtue of § 2680(a). Recall the purposes behind
the FTCA as stated at the start of this section. What sorts of choices do you think are likely to be
shielded from liability?
Note 2. The question of discretion exists to protect decisional autonomy unde r the same rationale
applied to the protection of parental autonomy under theories that supported parental immunity.
In Smelser v. Paul, supra the court likens parental immunity to governmental immunity. In a section
edited out of that opinion, it write s about both: “the purpose of immunity is to provide sufficient
breathing space for making discretionary decisions, by preventing judicial second-guessing of such
decisions through the medium of a tort action.”
One could carry the analogy further. Where some parental immunity has been retained, it is in
spheres in which policymakers intended to shield parents from liability, such as the core de cisions
involved with raising children. Whether to come to a full or a rolling stop at a stop sign, or how well
to maintain the brakes on one’s automobile, are not the kind of choice that policymakers wished to
shield from liability (or wish to shield, in the jurisdictions that retain some form of parental immunity).
Do you agree with the court that parental and governmental decision making are sufficiently similar
to analogize in this way? Even if both require breathing space, do both deserve it equally? Is the case
stronger for parents or governments, in your view?
Note 3. A persistent complexity in cases involving the discretionary function exception is whether
choosing not to take affirmative steps in a given case is a legitimate choice, one of the choices
protected under this form of immunity. Or in the alternative, is doing nothing not a choice among
many but rather a breach of duty? The answers are highly fact-dependent and do not produce a
coherent body of case law with a general rule.
In George, the court identifies the government’s duty “to protect others from hidden dangers they are
unaware of when such dangers pose a significant risk of serious bodily injury or death” and concludes
that it was not a choice the forest service officials could make, to refrain from taking remedial
Immunities | 513

measures. It clarified that “the de cisions of whether to have a swimming area and what measures to
take to protect individuals once the alligator problem arose were vested within the sound discretion
of the Forest Service and, thus, protected from “judicial second-guessing” by § 2680” (my emphasis).
Would the case have come out differently if the Forest Service had made halfhearted, ineffective
attempts to address the alligator problem? What do you imagine is the e asiest (lowest burden) set of
steps the Forest Service could have taken if it wanted its discretion preserved under this ruling? Was
this court effectively holding the Forest Service strictly liable for the presence of this large, aggressive
alligator? If so, what conduct would you expect to see from the Forest Service in the future?
Note 4. What is the government’s theory of contributory negligence against Ge orge and why does it
fail?

Exam tip: When analyzing governmental immunity and the applicability of the discretionary function
exception to waiver of sovereign immunity under the FTCA, be sure to evaluate *both* prongs of the
two-step test set out at § 2680! It is easy for students to get lost in the analysis of whether there was
sufficient discretion or choice and to forget to ask this second question. That’s an important
oversight because the second prong sets the scope of the discretion and failing to attend to it would
make the discretionary function exception swallow the rule.

Check Your Understanding – Set 32

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=71#h5p-96

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=71#h5p-97

Revisit the facts of Garrison v. Deschutes (Module 3, Causation), in which the Supreme Court of
Oregon held that it was not negligent when Gary Garrison was severely injured in a fall at the Fryrear
transfer station, in part because the de fendant’s failure to warn had not caused Garrison’s injuries.
514 | Immunities

Recall that there were two other issues mentioned but omitted from that version of the opinion:
allegedly negligent design and governmental immunity. We turn to those now.

Garrison v. Deschutes Cty., Supreme Court of Oregon (2002)
(334 Or. 264)
This personal injury case requires us to examine the scope of the immunity from liability that the
Oregon Tort Claims Act (OTCA) grants to certain kinds of discretionary decisions of a public body.
The case arose when plaintiff Gary Garrison

16

was injured when he fell from a raised concrete slab

onto a lower slab at a Deschutes County (county) refuse transfer station. Plaintiffs brought the present
action against the county, alleging three spe cifications of negligence. The county moved for summary
judgment, asserting that, by virtue of ORS 30.265(3)(c) … it was immune from liability for the acts that
plaintiffs alleged. The trial court agreed. On plaintiffs’ appeal, the Court of Appeals affirmed, holding
that: (1) the doctrine of qualified immunity protected the e xercise of discretion by county employees
in designing the transfer station; and (2) the county’s failure to warn plaintiffs of the obvious danger
of falling off the higher slab did not expose plaintiffs to a greater risk of harm than if they had been
warned. Garrison v. Deschutes County, 162 Or.App. 160 (1999). We allowed plaintiffs’ petition for review
and now affirm. [***]
A private landowner or occupier of land in a position similar to the county’s would be required to take
care to protect patrons on the premises from injuries resulting from known, dangerous conditions on
the premises or, at least, to warn them of the danger. Woolston v. Wells, 297 Or. 548, 557-58 (1984). [***]
The county is not a private entity, however. The question before the court, therefore, is whether the
fact that *273 the refuse station is not privately owned and operated alters the analysis. The answer
to that question lies in the applicability of the OTCA, ORS 30.260 et seq., which provides that public
bodies generally are liable for their torts, except in certain limited circumstances.
In this case, the county has asserted throughout that one of those circumstances pertains here. It
contends that it is entitled to “discretionary function” immunity under ORS 30.265(3)(c), which we
again set out here for the convenience of the reader. That subsection provides, in part:
“Every public body and its officers, employees and agents acting within the scope of their
employment or duties * * * are immune from liability for:
“*****
“(c) Any claim based upon the performance

of or the

failure

to e xercise or perform a

discretionary function or duty, whether or not the discretion is abused.”

16. Plaintiffs are Gary Garrison, who seeks damages for his own injuries, and Heather Garrison, his wife, who seeks damages
for loss of consortium.
Immunities | 515

By its terms, ORS 30.265(3)(c) confers immunity on the county, as a public body, from liability for
the negligent performance or nonperformance of a “discretionary function or duty.” The OTCA does
not define that phrase. However, the statute’s meaning and scope have be en fleshed out through
years of litigation. For example, this court has discussed the me aning of the term “discretion” in ORS
30.265(3)(c) on several occasions. In McBride v. Magnuson, 282 Or. 433, 437 (1978), the court stated
that conduct is “discretionary” in the se nse that immunity attaches to its negligent performance if the
decision is the result of a choice among competing policy considerations, made at the appropriate
level of government:
“[I]nsofar as an official action involves both the determination of facts and simple
cause-and-effect relationships and also the assessment of costs and benefits, the
evaluation of relative effectiveness and risks, and a choice among competing goals
and priorities, an official has ‘discretion’ to the e xtent that he has be en delegated
responsibility for the latter kind of value judgment.”
This court also has stated that ORS 30.265(3)(c) extends immunity “to decisions involving the making
of policy, but *274 not to routine de cisions made by employees in the course of their day-to-day
activities, even though the decision involves a choice among two or more courses of action.” [c]
Notwithstanding the foregoing, the court has stated that the “discretionary immunity” doctrine does
not immunize a decision not to exercise care at all, if action of some kind is required:
“A public body that owes a particular duty of care * * * has wide policy discretion in
choosing the me ans by which to carry out that duty. * * * The range of permissible
choices does not, however, include the choice of not exercising care.” Mosley v.
Portland School Dist. No. 1J, 315 Or. 85, 92, (1992) (citations omitted).
In other words, the de cision whether to protect the public by taking preventive me asures, or by
warning of a danger, if legally required, is not discretionary; however, the government’s choice of
means for fulfilling that requirement may be discretionary. [cc]
Moreover, only those de cisions that are made by officials in a position of authority are immune from
liability. [***] However, in assessing whether, in a particular case, a decision was made by the kinds of
decision-makers to whom the statutory immunity was intended to extend, the emphasis properly is
on the nature of the de cision-making, not necessarily the le vel of office. “Although policy discretion
is more likely to be found at or near the le vel of political responsibility, it is not simply a matter of the
defendant’s office but of the scope and nature of the choices delegated to him.” [c] [***] *275
With the foregoing standards in mind, we turn to the facts of the present case to e valuate whe ther
the de cision to build and maintain the refuse transfer station without erecting barriers at the e dge
of the platform that might prevent people from falling and the de cision to design the station so as to
require pe ople using the facility to back a vehicle onto the platform to dump refuse were de cisions
that involved the making of policy by people who had be en delegated the authority to make that type
of policy judgment.
Driver’s affidavit, which is undisputed, demonstrates that he and Rice, in the course of selecting a
516 | Immunities

design for the transfer station, made various decisions that were of a type that this court previously
has considered to be “discretionary” or “the making of policy”: They considered various design options
for the station; they evaluated the relative effectiveness, safety and risks, as well as the relative costs
and benefits, of constructing the station with and without the platform; they also considered the
added maintenance and resulting cost of adding a fence, railing, or other barrier to the platform,
as well as whether adding a fence, railing, or other barrier would make the platform more difficult
or more dangerous to use. In the end, they concluded that the design that they ultimately chosea platform that required users to back a vehicle up to dump refuse, with no barrier other than the
railroad tie to protect users from falling-was the safest, least expensive, *276 and easiest to use. Thus,
in selecting the final design under those criteria, Rice and Driver exercised the kind of discretion that
ORS 30.265(3)(c) protects-a protection that extends to the county’s operation of the refuse transfer
station in accordance with that design.
Plaintiffs have attempted to characterize that final design decision differently. They contend that
the county had a duty to protect the public and that the county did not satisfy that duty merely by
“considering” public safety and then deciding that safety measures would not be adopte d, whether
due to e xpense, inconvenience, or some other reason. In effect, plaintiffs assert that the county owed
a duty of care to the public that used the refuse transfer station and simply chose not to e xercise care.
Under this court’s decision in Mosley, they contend, that choice was not within the permissible range
of options available to the county and, therefore, was not entitled to immunity.
Plaintiffs’ argument is premised on a mischaracterization of the

undispute d facts. According to

Driver’s affidavit, Driver and Rice actively considered the relative risks and benefits of including in
the final design just the sort of fall protection devices that plaintiffs contend are required to protect
the public. For various reasons, Driver and Rice concluded that protective barriers actually would
make the platform less safe. We assume for purposes of this opinion that that conclusion might
have be en both wrong and negligently reached. Nonetheless, the uncontroverted evidence of that
thinking process establishes conclusively that this is not a case in which the de cision-makers simply
disregarded their duty to protect the public. On the contrary, with their decision, even if it was flawed,
they exercised their discretion and chose to protect the public in a particular way. Plaintiffs wish to
argue that the county should have done some thing more, or something different, but that argument
is the kind of second-guessing that is defeated by immunity under ORS 30.265(3)(c).
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
*280 DURHAM, J., dissenting.
For the reasons stated below, I believe that the majority misapplies the statutory immunity for the
performance of a “discretionary function or duty” set out in ORS 30.265(3)(c). [***] Plaintiffs contend
that, on the date of the accident, defendant invited the public to use its refuse facility and that
plaintiffs were business invitees at the time of the accident. According to plaintiffs, defendant knew
that the large concrete garbage pit on the premises created an unreasonably dangerous condition due
to the lack of any fall protection device, but failed to use reasonable care to eliminate the risk of injury
to invitees or to warn of the danger.

Immunities | 517

Plaintiffs’ claim invokes the legal duty owed by a land occupier to business invitees. This court
summarized that duty in Woolston v. Wells, 297 Or. 548, 557-58 (1984):
“In general, it is the duty of the possessor of land to make the premises reasonably
safe for the invitee’s visit. *281 The possessor must exercise the standard of care
above stated to discover conditions of the premises that create an unreasonable
risk of harm to the invitee. The possessor must exercise that standard of care
either to eliminate the condition creating that risk or to warn any foreseeable
invitee of the risk so as to enable the invitee to avoid the harm.”
[***] Defendant’s duty to business invitees, as described in Woolston, is not a “discretionary function
or duty,” to use the te rms of ORS 30.265(3)(c).

17

Rather, defendant’s duty, as *282 summarized in

Woolston, is nondiscretionary. That is, the law has made a policy choice, for defendant as well as
all other landowners and occupiers who invite customers to enter their property, that mandates
compliance with the legal duty described in Woolston. As this court explained in Miller v. Grants Pass
Irr. Dist., 297 Or. 312 (1984), a public body may have discretion in choosing how it will satisfy its duty to
the public but it has no discretion to choose not to fulfill its legal duty:
“If there is a legal duty to protect the public by warning of a danger or by taking preventing
measures, or both, the choice of means may be discretionary, but the de cision whether or not to
do so at all is, by definition, not discretionary.
“This is so whether the duty derives from statutory or from common law. * * * The law itself has
made that much of a policy choice. When different precautions might satisfy this duty, however,
the choice of which one to use may be discretionary.” Id. at 320.
The passage from Miller, quoted above, confirms that a public body has no discretion to decide
whether to satisfy a legal duty imposed by Oregon common law. Defendant simply is incorrect in

17. In his concurring opinion in Miller v. Grants Pass Irr. Dist., 297 Or. 312, 323-24, 686 P.2d 324 (1984), Justice Lent opined
that the notion of a “discretionary duty,” which the text of ORS 30.265(3)(c) embraces, is a contradiction in terms that
detracts from a principled statutory analysis. He did, however, offer the following explanation, with which I agree,
regarding the concepts of discretion and legal duty in the application of ORS 30.265(3)(c): “I do have trouble envisioning
a discretionary duty. ORS 30.265(1), speaking generally, makes the state or a local public body liable for its torts. In order
for there to be a tort the actor must breach some duty imposed by law, that is, by legislative enactment (statute, rule,
regulation, charter, ordinance, etc.) or the common law. The duty must be identified and proclaimed to exist by a court,
as a matter of law, not fact. A duty either exists or it does not. The law either commands someone to act, or refrain from
acting, or it does not. In this case, the Irrigation District chose to build and operate a dam. Having done so, it should be
held to the same duty as would any person, natural or corporate, have in the operation of a dam and the impoundment
of water, to protect those on the water from an unreasonable risk of harm arising from the District's activities in this
respect. If legislation or the common law imposes a duty on a dam operator in these circumstances, there is nothing
‘discretionary’ about the existence of the duty, nor can it be described by that adjective. There may be, and probably is,
room for discretion in choosing the manner of performance, both for a private person or a public agency, but the duty
must be performed and the standard of care required by the duty must be achieve. To sum up, a discretionary function
is one concerning which the governmental agency involved has power to make a choice among valid alternatives, but if
there is a duty imposed by law there is no choice but to obey. If there is no duty, to which adherence is required, then
the agency is concerned with a function rather than a duty. I really don’t know what a discretionary duty looks like.”
518 | Immunities

arguing (1) that the range of its permissible discretionary choices included the choice to do nothing
to comply with the duty stated in Woolston, or (2) that its consideration of policy-related criteria,
coupled with a choice to take no precautions against the risk of falls at the e dge of the *284 pit,
qualifies under Miller as a choice of means to satisfy the duty described in Woolston. [***]
More

puzzling is the

majority’s e
ffort to portray defendant’s conduct as an “exercise

[of] care”

that defendant’s agents believed to be more safe than what plaintiffs sought. Id. The assertion that
defendant did exercise care in de signing the refuse pit contradicts the majority’s assumption that
defendant’s decision to forego any fall protection device
s “might have

be en both wrong and

negligently reached.” Id. at 276. Moreover, because the case is before the court on summary judgment,
we must construe the e vidence in the light most favorable to plaintiffs. In view of the contention of
plaintiffs’ expert witness that the design of the refuse pit was unreasonably dangerous, the majority’s
conclusion that defendant exercised care is both irrelevant and impermissible.
Lastly, the mere belief of defendant’s agents in the greater safety of their design is irrelevant. Plaintiffs
rely on defendant’s failure

to take

any precautions to eliminate

the

known risk that customers

might fall into the refuse pit-a nondiscretionary legal duty imposed by Oregon law. See Woolston,
297 Or. at 557-58 (describing legal duty). While the confidence displayed by defendant’s agents is
understandable, it does not justify immunizing defendant for failing to adopt any precautions against
a known risk of injury from falls, in accordance with Oregon law.
This is not a case in which defendant made a choice to use a de vice to protect against falls, but the
device simply failed to function. Rather, defendant seeks discretionary immunity for its decision not
to use any protection against the risk of falling, i.e., choosing not to use reasonable care to “eliminate
the condition creating that risk or to warn any foreseeable invitee of the risk so as to e nable the
invitee to avoid the harm.” Id. at 558. Defendant’s argument, carried to *287 its logical conclusion,
would immunize a public body’s decision to disregard its nondiscretionary legal duty, simply because
the public body believed that its policy reasons for avoiding its legal duty were supe rior to the policy
reasons that supported creation of the legal duty in the first instance. The legislature did not intend
that construction of ORS 30.265(3)(c).
Because defendant has not demonstrated that it is entitled to immunity from liability at this stage
of the proceeding, the trial court should have denied defendant’s motion for summary judgment.
Accordingly, I respectfully dissent.
Note 1. “Discretion” is defined in Garrison to include: “both the determination of facts and simple
cause-and-effect relationships and also the assessment of costs and benefits, the

e valuation of

relative effectiveness and risks, and a choice among competing goals and priorities.”
When cast in this way, the discretion would seem to consist of a huge range of government actions.
Is the discretionary function exception more properly understood as a default to immunity, with only
truly ministerial (non-discretionary) tasks subject to the possibility of tort liability?
Note 2. The majority, in finding the discretionary exception applied, reasoned: “[T]he de cision whether
to protect the public by taking preventive me asures, or by warning of a danger, if legally required,
is not discretionary; however, the government’s choice of means for fulfilling that requirement may
Immunities | 519

be discretionary. [cc] In some respects, this distinction paralle ls the dividing line be tween duty and
breach; duty expresses a legal obligation and breach specifies what conduct the duty requires on a
given set of facts. Does that dividing line seem to you to apply here?
Note 3. What are the disse nt and the majority opinions arguing over? How is it that they cite some of
the same cases for seemingly different purposes? Whose opinion is more persuasive to you?

4. Limits on Governmental Liability: The Public Duty Doctrine
Sovereign immunity was waived by the federal, state, tribal, and local governments with respect to
many different functions, such as permitting recovery against negligently driving mail carriers, as
you learned above. However, the scope of the duty owed by governments outside the cle arly waived
immunity was not always clear. Recall that at common law there was no duty “to rescue,” or to engage
in certain affirmative steps unless particular relationships or contracts or categories imposed a duty.
To be sure, governmental immunity was partially to be waived but partially to be retained, but the
question was, waived as to what? The flipside of this question was one of duty: to whom, and for what,
did the government owe a duty once it had waived its blanket immunity? A doctrine known as “the
public duty doctrine” arose to define and delimit a sphere of obligation to the public.
The ne xt case features an abusive relationship, and violent actions by a rejected ex-boyfriend whose
threats the police did not take seriously enough to act on before the y resulted in serious physical
injury. The court does not find liability, and the discussions of both the majority and dissenting
opinions are notable for their deep discussions of policy with respect to both duty and immunity.

Riss v. City of New York, New York Court of Appeals (1968)
(22 N.Y.2d 579)
[Editor’s Note: The description of the facts in this case is taken from the dissenting opinion of Judge
Keating (which the majority opinion points to, in omitting its own discussion of the facts).]
Linda Riss, an attractive

young woman, was for more

than six months terrorized by a rejected

suitor well known to the courts of this State, one Burton Pugach. This miscreant, masquerading as
a respectable attorney, repeatedly threatened to have Linda kille d or maimed if she did not yield to
him: ‘If I can’t have you, no one e lse will have you, and when I get through with you, no one else
will want you.’ In fear for her life, she went to those charged by law with the duty of preserving and
safeguarding the lives of the citizens and residents of this State. Linda’s repeated and almost pathetic
pleas for aid were received with little more than indifference. Whatever help she was given was not
commensurate with the identifiable danger. On June 14, 1959 Linda be came engaged to another man.
At a party held to celebrate the e vent, she received a phone call warning her that it was her ‘last
chance.’ Completely distraught, she called the police, begging for help, but was refused. The ne xt day
520 | Immunities

Pugach carried out his dire threats in the very manner he had foretold by having a hired thug throw lye
in Linda’s face. Linda was blinded in one e ye, lost a good portion of her vision in the other, and her face
was permanently scarred. After the assault the authorities concluded that there was some basis for
Linda’s fears, and for the next three and one-half years, she was given around-the-clock protection.”
This appeal presents, in a very sympathetic framework, the issue of the liability of a municipality for
failure to provide spe cial protection to a member of the public who was repeatedly threatened with
personal harm and eventually suffered dire personal injuries for lack of such protection. … The issue
arises upon the affirmance by a divided Appellate Division of a dismissal of the complaint, after both
sides had rested but before submission to the jury. It is necessary immediately to distinguish those
liabilities attendant upon governmental activities which have displaced or supplemented traditionally
private enterprises, such as are involved in the operation of rapid transit systems, hospitals, and places
of public assembly. Once sovereign immunity was abolished by statute the e xtension of liability on
ordinary principles of tort law logically followed. To be e qually distinguished are certain activities of
government which provide services and facilities for the use of the public, such as highways, public
buildings and the like, in the performance of which the municipality or the State may be liable unde r
ordinary principles of tort law. The ground for liability is the provision of the services or facilities for
the direct use by members of the public.
In contrast, this case involves the provision of a governmental service to protect the public generally
from external hazards and particularly to control the activities of criminal wrongdoers. [cc] The
amount of protection that may be provided is limited by the resources of the community and by
a considered legislative-executive de cision as to *582 how those resources may be deployed. For
the courts to proclaim a new and general duty of protection in the law of tort, even to those who
may be the particular seekers of protection based on specific hazards, could and would inevitably
determine how the limited police resources of the community should be allocated and without
predictable limits. This is quite different from the predictable allocation of resources and liabilities
when public hospitals, rapid transit systems, or even highways are provided. Before such e xtension
of responsibilities should be dictated by the indirect imposition of tort liabilities, there should be a
legislative de termination that that should be the scope of public responsibility. It is notable that the
removal of sovereign immunity for tort liability was accomplished after legislative enactment and not
by any judicial arrogation of power (Court of Claims Act, §8). [***]
When one considers the greatly increased amount of crime committed throughout the cities, but
especially in certain portions of them, with a repetitive and predictable pattern, it is easy to see
the consequences of fixing municipal liability upon a showing of probable ne ed for and request for
protection. To be sure the se are grave problems at the present time, exciting high priority activity
on the part of the national, State and local governments, to which the answers are neither simple,
known, or presently within reasonable controls. To foist a presumed cure for these problems by
judicial innovation of a new kind of liability in tort would be foolhardy indeed and an assumption of
judicial wisdom and power not possessed by the courts. *583 [***] For all of these reasons, there is
no warrant in judicial tradition or in the proper allocation of the powers of government for the courts,
in the absence of legislation, to carve out an area of tort liability for police protection to members
of the public. Quite distinguishable, of course, is the situation where the police authorities undertake
Immunities | 521

responsibilities to particular members of the public and e xpose them, without adequate protection,
to the risks which then materialize into actual losses [c].
Accordingly, the

order of the Appellate

Division affirming the judgment of dismissal should be

affirmed.
KEATING, JUDGE (dissenting)
Certainly, the

record in this case, sound legal analysis, relevant policy considerations and even

precedent cannot account for or sustain the result which the majority have here reached. For the
result is premised upon a legal rule which long ago should have be en abandoned, having lost any
justification it might once have had. Despite almost universal condemnation by legal scholars, the
rule survives, finding its continuing strength, not in its power to persuade, but in its ability to arouse
unwarranted judicial fears of the consequences of overturning it.
No one que stions the proposition that the first duty of government is to assure its citizens the
opportunity to live in personal security. And no one who reads the record of Linda’s ordeal can reach a
conclusion other than that the City of New York, acting through its agents, completely and negligently
failed to fulfill this obligation to Linda.
Linda has turned to the courts of this State for redress, asking that the city be he ld liable in damages
for its negligent failure to protect her from harm. With compelling logic, she can point out that, if
a stranger, who had absolutely no obligation to aid her, had offered her assistance, and thereafter
Burton Pugach was able to injureher as a result of the negligence of the volunteer, the courts would
certainly require him to pay damages. (Restatement, 2d, Torts, § 323.) Why then should the city, whose
duties are impose d by law and include the prevention of crime (New York City Charter, § 435) and,
consequently, extend far beyond that of the Good Samaritan, not be responsible? If a private de tective
acts carelessly, no one would deny that a jury could find such conduct unacceptable. Why then is the
city not required to live up to at least the same minimal standards of professional competence which
would be demanded of a private detective?
Linda’s reasoning seems so eminently sensible that surely it must come as a shock to her and to
every citizen to hear the city argue and to le arn that this court decides that the city has no duty to
provide police protection to any given individual. What makes the city’s position particularly difficult
to understand is that, in conformity to the dictates of the law, Linda did not carry any weapon for selfdefense (former Penal Law, §1897). Thus, by a rather bitter irony she was required to rely for protection
*585 on the City of New York which now denies all responsibility to her.
It is not a distortion to summarize the essence of the city’s case here in the following language:
“Because we owe a duty to everybody, we owe it to nobody.” [***] To say that there is no duty is, of
course, to start with the conclusion. The question is whether or not there should be liability for the
negligent failure to provide ade quate police protection. The foremost justification repeatedly urged
for the e xisting rule is the claim that the State and the municipalities will be exposed to limitless
liability. The city invokes the specter of a “crushing burden” (Steitz v. City of Beacon, 295 N. Y. 51, 55)
if we should depart from the e xisting rule and enunciate e ven the limited proposition that the State
and its municipalities can be he ld liable for the negligent acts of their police employees in executing
522 | Immunities

whatever police services they do in fact provide (cf. dissenting opn. per Desmond, J., in Steitz v. City
of Beacon, citation omitted).
The fear of financial disaster is a myth. The same argument was made a generation ago in opposition
to proposals that the State waive its defense of “sovereign immunity”. The prophecy proved false
then and it would now. The suppose d astronomical financial burden does not and would not exist.
No municipality has gone bankrupt be cause it has had to respond in damages when a policeman
causes injury through carelessly driving a police car or in the thousands of other situations where,
by judicial fiat or legislative enactment, the State and its subdivisions have be en held liable for the
tortious conduct of their employees. Thus, in the past four or five years, New York City has been
presented with an average of some 10,000 claims each year. The figure would sound ominous except
for the fact the city has been paying out less than $8,000,000 on tort claims each year and this amount
includes all those sidewalk defect and snow and ice cases about which the courts fret so often. [c]
Court delay has reduced the figure paid *586 somewhat, but not substantially. Certainly this is a slight
burden in a budget of more than six billion dollars (less than two tenths of 1%) and of no importance as
compared to the injustice of permitting unredressed wrongs to continue to go unrepaired. That Linda
Riss should be asked to bear the loss, which should properly fall on the city if we assume, as we must,
in the present posture of the case, that her injuries resulted from the city’s failure to provide sufficient
police to protect Linda is contrary to the most elementary notions of justice.
The statement in the majority opinion that there are no predictable limits to the potential liability for
failure to provide ade quate police protection as compared to other areas of municipal liability is, of
course, untenable. When immunity in other areas of governmental activity was removed, the same
lack of predictable limits existed. Yet, disaster did not ensue.
Another variation of the “crushing burden” argument is the contention that, every time a crime is
committed, the city will be sue d and the claim will be made that it resulted from inadequate police
protection. Here, again, is an attempt to arouse the “anxiety of the courts about new theories of
liability which may have a far-reaching effect” [c]. And here too the unde rlying assumption of the
argument is fallacious because it assumes that a strict liability standard is to be impose d and that
the courts would prove completely unable to apply general principles of tort liability in a reasonable
fashion in the context of actions arising from the negligent acts of police and fire personnel. The
argument is also made as if there

were no such legal principles as fault, proximate

cause

or

foreseeability, all of which operate to keep liability within reasonable bounds.
No one is contending that the police must be at the scene of every potential crime or must provide
a personal bodyguard to every person who walks into a police station and claims to have be en
threatened. They need only act as a reasonable man would under the circumstances. At first there
would be a duty to inquire. If the inquiry indicates nothing to substantiate the alle ged threat, the
matter may be put aside and othe r matters attended to. If, however, the claims prove to have some
basis, appropriate steps would be necessary. *587
The instant case provides an excellent illustration of the limits which the courts can draw. No one
would claim that, under the facts here, the police were negligent when they did not give Linda
protection after her first calls or visits to the police station in February of 1959. The preliminary
Immunities | 523

investigation was sufficient. If Linda had been attacked at this point, clearly there would be no
liability here. When, however, as time went on and it was established that Linda was a reputable
person, that other verifiable attempts to injure her or intimidate her had taken place, that other
witnesses were available to support her claim that her life was being threatened, something more was
required—either by way of further investigation or protection— than the statement that was made by
one de tective to Linda that she would have to be hurt before the police could do anything for her.
[***]
More significant, however, is the fundamental flaw in the reasoning behind the argument alleging
judicial interference. It is a complete oversimplification of the problem of municipal tort liability. What
it ignores is the fact that indirectly courts are reviewing administrative practices in almost every tort
case against the State or a municipality, including even decisions of the Police Commissioner.
The truth of the matter, however, is that the courts are not making policy decisions for public officials.
In all these municipal negligence cases, the courts are doing two things. First, they apply the principles
of vicarious liability to the operations of government. Courts would not insulate the city from liability
for the ordinary negligence of members of the highway department. There is no basis for treating the
members of the police department differently. Second, and most important, to the e xtent that the
injury results from the failure to allocate sufficient funds and resources to meet a minimum standard
of public administration, public officials are presented with two alternatives: either improve public
administration or accept the cost of compensating injured persons. Thus, if we were to hold the city
liable here for the negligence of the police, courts would no more be interfering with the operations of
the police department than they “meddle” in the affairs of the highway department when they hold the
municipality liable for personal injuries resulting from defective side walks, or a private employer for
the negligence of his employees. In other words, all the courts do in these municipal negligence cases
is require officials to weigh the consequences of their decisions. If Linda Riss’ injury resulted from the
failure of the city to pay sufficient salaries to attract qualified and sufficient personnel, the full cost
of that choice should be come acknowledged in the same way as it has in other areas of municipal
tort liability. Perhaps officials will find it less costly to choose the alte rnative of paying damages than
changing their existing practices. That may be well and good, but the price for the refusal to provide
for an adequate police force should not be borne by Linda Riss and all the other innocent victims of
such decisions.
What has existed until now is that the City of New York and other municipalities have be en able to
engage in a sort of false *590 bookkeeping in which the real costs of inadequate or incompetent police
protection have be en hidden by charging the e xpenditures to the individuals who have sustaine d often
catastrophic losses rather than to the community where it belongs, because the latter had the power
to prevent the losses.
Although in modern times the compensatory nature of tort law has generally bee n the one most
emphasized, one of its most important functions has been and is its normative aspe ct. It sets forth
standards of conduct which ought to be followed. The penalty for failing to do so is to pay pecuniary
damages. At one time the government was completely immunized from this salutary control. This is
much less so now, and the imposition of liability has had healthy side effects. In many areas, it has
resulted in the adoption of better and more considered procedures just as workmen’s compensation
524 | Immunities

resulted in improved industrial safety practices. To visit liability upon the city here will no doubt have
similar constructive effects. No “presumed cure” for the problem of crime is being “foisted” upon
the city as the majority opinion charges. The methods of dealing with the problem of crime are left
completely to the city’s discretion. All that the courts can do is make sure that the costs of the city’s
and its employees’ mistakes are placed where the y properly belong. Thus, every reason used to sustain
the rule that there is no duty to offer police protection to any individual turns out on close analysis to
be of little substance.
The rule is judge made and can be judicially modified. By statute, the judicially created doctrine
of “sovereign immunity” was destroyed. It was an unrighteous doctrine, carrying as it did the
connotation that the government is above the law. Likewise, the law should be purged of all new
evasions, which seek to avoid the full implications of the repeal of sovereign immunity. No doubt in
the future we shall have to draw limitations just as we have done in the area of private litigation, and
no doubt some of these limitations will be unique to municipal liability *593 because the problems
will not have any counterpart in private tort law. But if the lines are to be drawn, let them be
delineated on candid considerations of policy and fairness and not on the fictions or relics of the
doctrine of “sovereign immunity”. Before reaching such questions, however, we must resolve the
fundamental issue raised here and recognize that, having undertaken to provide professional police
and fire protection, municipalities cannot escape liability for damages caused by their failure to do
even a minimally adequate job of it.
The Appellate Division did not adopt the “no duty” theory, but said there was no negligence here
because the danger was not imminent. Despite the fact that the majority of the Appellate Division
“agree[d] that certain rulings, and particularly the manner in which they were made, did not add to
the appe arance of a fair trial”, and which, in fact, resulted in a wholly inadequate he aring, the majority
found that the “facts brought out on this trial do not show the presence of such imminent danger that
extraordinary police activity was so indicated that the failure to take it can be de emed unreasonable
conduct.” This finding does not stand examination and to its credit the city does not argue that this
record would not support a finding of negligence. The danger to Linda was indeed imminent, and this
fact could easily have been confirmed had there been competent police work.
Moreover, since this is an appe al from a dismissal of the complaint, we must give the plaintiff the
benefit of every favorable inference. The Appellate Division’s conclusion could only have be en reached
by ignoring the thrust of the plaintiff’s claim and the e vidence in the record. A few examples of the
actions of the police should suffice to show the true state of the record.
Linda Riss received a telephone call from a person who warned Linda that Pugach was arranging to
have her beaten up. A detective le arned the identity of the caller. He offered to arrest the caller, but
plaintiff rejected that suggestion for the obvious reason that the informant was trying to help Linda.
When Linda requested that Pugach be arrested, the de tective said he could not do that because she
had not yet been hurt. The statement was not so. It was and is a crime to conspire to injure some one.
True there was no basis to arrest Pugach then, but that was only because the ne cessary leg work had
not been done. No one *594 went to speak to the informant, who might have furnishe d additional
leads. Linda claimed to be receiving telephone calls almost every day. These calls could have be en
monitored for a few days to obtain evidence against Pugach. Any number of reasonable alternatives
Immunities | 525

presented themselves. A case against Pugach could have be en developed which would have at least
put him away for awhile or altered the situation entirely. But, if necessary, some police protection
should have been afforded.
Perhaps, on a fuller record after a true trial on the merits, the city’s position will not appear so
damaging as it does now. But with actual notice of danger and ample opportunity to confirm and
take reasonable remedial steps, a jury could find that the persons involved acted unreasonably and
negligently. Linda Riss is entitled to have a jury dete rmine the issue of the city’s liability. This right
should not be terminated by the adoption of a question-begging conclusion that there is no duty owed
to her. The order of the Appellate Division should be reversed and a new trial granted.
Note 1. What does the court mean when it writes: “Quite distinguishable, of course, is the situation
where the police authorities undertake responsibilities to particular members of the public and
expose them, without adequate protection, to the risks which then materialize into actual losses”? Did
Riss not suffer actual losses? What sorts of actions would constitute, in your view, an “undertaking” of
“responsibilities to particular members of the public”?
Note 2. The dissent states that “No one is contending that the police must be at the scene of every
potential crime or must provide a personal bodyguard to every person who walks into a police station
and claims to have be en threatened” (although after Riss, in fact, the NYPD did assign a full-time
bodyguard to her). Instead, the dissent writes that the police “need only act as a reasonable man
would under the circumstances. At first there would be a duty to inquire. If the inquiry indicates
nothing to substantiate the alle ged threat, the matter may be put aside and othe r matters attended
to. If, however, the claims prove to have some basis, appropriate steps would be ne cessary.” What
are the costs and benefits of applying a reasonableness standard to police protection? What are the
implications of doing so, in terms of allocating decision authority between judge and jury, or in terms
of the institutional competence of courts versus legislators? What do you think is the right answer,
normatively, here?
Note 3. The facts of Riss are upse tting, whatever one feels about the normative propositions expressed
in the

two differing opinions. Pugach’s violent assault and partially blinding Riss seems like

a

culmination of threats he had made, and they were part of a pattern of anger and retribution on behalf
of a jilted lover. The facts point to deeper societal problems of sexism, controlling relationships and
domestic violence, as well as to the law’s sometimes-peripheral role in addressing these. The opinion
does not address the psychological issues inherent in dynamics of harassment and control, such as
those that are often involved in abusive relationships. In this case, the facts are a tragic testament to
how deeply the psychological issues can run. This obituary from Riss’s 2013 passing tells part of the
story of her life with Pugach, whom she marrie d after he was released from jail, and it opens with the
following summary:
She was 22, a sheltered, dark-haired Bronx beauty said to look like Elizabe th Taylor. He
was a decade older, a suave lawyer who courted her with flowers, rides in his powder-blue
Cadillac and trips to glittering Manhattan nightclubs. He was married, though not to her.
Before long, tiring of his unfulfilled promises to divorce his wife, she ended their affair. He

526 | Immunities

hired three men, who threw lye in her face, blinding her, and went to prison for more than
a decade. Afterward, she married him.
https://www.nytimes.com/2013/01/24/nyregion/linda-riss-pugach-whose-life-wasripped-from-headlines-dies-at-75.html
This excerpt’s conclusion hints at the unusual nature of Riss’s 38-year marriage to Pugach but it
was much more sensational and difficult for outsiders to understand. Their relationship, including
many aspects of its abuse, was documented in a book and a documentary, Crazy Love, released in
2007. According to the New York Times, the documentary is “[p]art cautionary tale, part psychological
study, part riveting disaster narrative.” It is difficult to watch but recommended for those interested in
the dynamics of abusive relationships. It also implicates the New York Police Department once again
but in a more surprising way. A female bodyguard was assigned to guard Riss after Pugach blinded
her, and Riss and her guard became friends. When Pugach, from prison, decided to woo Riss again, he
appealed to the bodyguard and she ultimately intervened to help Pugach court Riss (apparently quite
in contravention of her employment mandate to protect Riss from him at all costs). After the couple
reunited, however, Pugach eventually resumed his womanizing. The obituary describes a trial in 1997
during which Pugach was tried for charges of abuse and attempted murder of a different woman while
married to Linda Riss (“Mrs. Pugach”): “At the trial, at which Mr. Pugach represented himself, Mrs.
Pugach testified on his behalf, telling him in open court, ‘You’re a wonderful, caring husband.’ The
alleged victim in the case was Mr. Pugach’s mistress of five years.”
Does knowing about the abusive dynamic between Riss and Pugach lend support for one or the othe r
of the opinions in Riss? Tort law has tended to keep its distance from domestic violence, historically
treating spouses and domestic partners as presumptively immune from tort liability for harms they
cause e ach other, partly out of longstanding concerns that courts are not the right entity to “interfere”
with familial relations and could make problems worse. Scholarship has also long shown that the
reluctance to use tort law to help victims of domestic violence reflects latent misogyny in the legal
system. In your view, is this an area in which policy concerns ought to militate in favor of more or less
regulation through tort law? What are the countervailing factors in your consideration?
Note 4. How far should discretion for police de cisionmaking extend with respect to their assessments
of threat and their allocation of resources to respond to given threats? How realistic or reasonable
is it to anticipate that they will make the se predictions accurately? How accurately does tort law, or
should tort law, expect the police to make them? The dissent talks about a strict liability standard; is
this the likely outcome of holding the police liable when they make the wrong call?

Check Your Understanding – Set 33

Immunities | 527

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=71#h5p-98

528 | Immunities

24. Statutes of Limitation and Repose
Statutes of Limitation. Statutes of limitation are mandatory deadlines by which a plaintiff must bring
a claim in a civil case or lose the ir ability to pursue it. In many, if not most torts cases, the statute of
limitations is 2 or 3 years; the law of the forum determines the length. For certain narrow areas that
involve long-term projects (like architecture and construction) or long-lasting harm (such as in latent
chemical pollution cases), there may be longer prescribed periods of potential liability. In a number of
jurisdictions, defamation actions have a one-year limit.
In some cases, parties try to strategically present their claim in whichever of the available windows
is longer and courts, if they are aware of such efforts, do not permit parties to frame their claims
strategically so as to avoid the e xpiration of the statute of limitations. Although this topic is often an
add-on at best in many law school classes, it is worth highlighting that it is likely legal malpractice for
lawyers not to know the statutes of limitations or indeed, to practice in a way that causes a client to
lose the ability to pursue their claim due to missing the deadline imposed by statute.
The “clock” starts running, typically, from the time whe n the claim accrued, that is, from the first
possible time whe n the plaintiff could file suit and obtain relief. In tort law, this is usually the time of
tortiously caused injury. However, in some instances, a plaintiff’s injury predates their awareness of
injury. For example, this could happen when the plaintiff is defamed without their initially being aware
of it and later suffers professionally or personally, only then discovering the existence of an earlier
defamatory statement that has caused harm. Similarly, a plaintiff may be e xposed to some sort of harm
or defective design that exerts harmful effects which take some time to be come discernible or whose
cause has not previously been traced to the tortfeasor. In cases such as these, where the injury is
latent or unknown, the claim accrues from the time of discovery rather than injury. This extension of
the start of the statute of limitations is known as the “discovery rule.”
The e xpiration of the statute of limitations is usually raised by the defendant as a defense to the
lawsuit. However, the statute may be “tolle d,” or paused, for minors or those incapable of bringing
a claim for reasons of incompetence or disability. In some instances, parties may be estopped from
using the e xpiration of the statute of limitations as a defense if they have engaged in behaviors like
fraud or deceit that caused the plaintiff to delay bringing a lawsuit.
Statutes of limitation are generally considered to impose procedural limits. A claim will be dismisse d
as time-barred if it falls outside the statute of limitations by even a single day, regardless of the
substantive merits of the claim. The central purpose of these statutes is to incentivize prompt action
by the plaintiff; effectively, they start a legislative timer running. In that sense, these statutes are
forward-looking. They begin at some date in time (injury or discovery) and then fix a particular period
in time.
Statutes of Repose. By contrast, statutes of repose are typically considered to be substantive rather
than procedural, and they are aime d less at incentivizing the plaintiff than protecting the defendant.
Statutes of repose create an outer limit on the right to bring a civil action. This limit is not measured
Statutes of Limitation and Repose | 529

from the date on which the claim accrues but instead from the date of the last culpable act or omission
of the defendant. A statute of repose bars any suit that is brought after a specified time from the
defendant’s last action. In torts, that could mean negligently designing or manufacturing a product, or
continuing to sell copies of a book that contains defamatory language. The repose will bar a lawsuit
even if the period ends before the plaintiff has discovered an injury. In fact, it will bar a lawsuit even
if the plaintiff has not yet been injured and sustains later-arising injury. Effectively, a statute of repose
creates a sharp break for the defendant, a fresh start or point at which they can be cle ar that they
are no longer potentially liable in connection with some action or venture. Without such a statute, for
instance, a contractor who builds a building could find themselves sued two or three de cades after
building it as the result of a latent defect’s becoming known.
Statutes of repose exist to protect against risks of infinite liability and to ensure some predictability
for potential defendants. Such statutes are retrospective in the se nse the y look back to the last action
by the defendant to measure potential claims’ validity. The interest in giving “repose” or peace of mind
to the defendant is so strong that unlike statutes of limitations, statutes of repose are not usually
tolled for equitable considerations (such as age or incompetence). Because the y are some what more
rigid and potentially harsher for plaintiffs, statutes of repose are less commonly used. They also tend
to be longer. For instance, the statute of repose for construction-based claims tends to be ten years
long. They can be a very helpful policy tool, however, in areas such as medical malpractice, products
liability or construction in which industry or policy-makers fear the chilling effects of potentially
endless liability.
Comparing the two types of statutes, their name is a helpful starting point. Statutes of limitation are
aimed at limiting the plaintiff and statutes of repose are aime d at giving the defendant peace of mind
or the finality of “repose.” Recall that statutes of limitation are procedural and forward-looking, aimed
at the plaintiff; statutes of repose are substantive and retrospective, aimed primarily at the defendant.
Sometimes the two operate together as in the following example.
Example: A Statute of Limitations and Repose
In Illinois, a statute of limitations mandates that an owner wishing to bring a lawsuit for a
construction defect do so within four years of actual or constructive notice of the defect. 735
ILCS 5/13-214 (a). A statute of repose cuts off the period of potential discovery, however: “No
action based upon tort, contract or otherwise may be brought against any person for an act or
omission of such person in the design, planning, supervision, observation or management of
construction, or construction of an improvement to real property after 10 years have elapsed
from the time of such act or omission.” 735 ILCS 5/13-214 (b). This means that the owner has
up to ten years from the date of substantial completion of the construction within which to
discover the defect and another four years during which 214(a)’s limitation period runs, or
effectively, up to fourteen years maximum from the defendant’s last actions.
There

are

four limits or exceptions imposed: if the builder voluntarily provides a longer

warranty or engages in fraudulent misrepresentations, these limitations on the timeliness
of available actions will be disregarded under express provisions set out at 214(d) and (e)
respectively. In addition, the limitation and repose provisions are both tolle d for disability or
530 | Statutes of Limitation and Repose

youth: “If a person otherwise entitled to bring an action could not have brought such action
within the limitation periods herein solely because such person was under the age of 18 years,
or a person with a developmental disability or a person with mental illness, then the limitation
periods herein shall not begin to run until the person attains the age of 18 years, or the
disability is removed.” 735 ILCS 5/13-214 (c).
Lastly, the legislature e xpressly excepted asbestos cases. Under 214(f), the statute of repose
“does not apply to an action that is based on personal injury, disability, disease, or death
resulting from the discharge into the environment of asbestos.” Asbestos use was common
in construction and insulation and thus often implicated in construction injuries. It is now
subject to several restrictions and partial bans given the conclusive e vidence that it causes
several kinds of cancer. Listing an exception here creates the strong incentive it creates for
builders to take preventive me asures in all matters related to asbestos. It also comports with
Illinois legislation and regulation by the Illinois Environmental Protection Agency, which have
issued specific rules about asbestos.
In conclusion, there

are

overlapping policy interests in the two forms of statutory limits and

legislatures sometimes expressly connect them in the way the Illinois e xample above illustrates. In
general, the two types of limits on causes of action in tort law can be distinguishe d and must be
separately taken into account whenever they are both relevant.

Exam tip: a statute of limitations governs the time within which a suit may be brought once a cause
of action accrues (whether from injury or discovery). A statute of repose limits the time within which
an action may be brought regardless of the accrual of a cause of action—this means a cause of action
can be barred under a statute of repose even before it has accrued! Be sure to look for both kinds of
limits!
When issue-spotting, look at the plaintiff’s conduct to assess whether they’ve complied with the
statute of limitations. If there is mention of a statute of repose, look at the date of defendant’s last
known conduct to see whether the claim is barred.

Perkins v. HEA of Iowa, Inc., Supreme Court of Iowa (2002)
(651 N.W.2d 40)
Diane Perkins contracted hepatitis C as a result of her employment at HEA of Iowa, a retirement
facility in Clinton. An arbitrator awarded her workers’ compensation benefits, but the award was
vacated by the acting industrial commissioner. On judicial review, the award was reinstated by the
district court, which ruled that the commissioner’s findings, with respect to the application of our
discovery rule, were not supported by substantial evidence. The employer appealed. The court of
appeals, on a divided vote, affirmed. We granted the employer’s application for further review. We
affirm the decision of the court of appeals and the judgment of the district court.
Statutes of Limitation and Repose | 531

The industrial commissioner found the following facts. On October 2, 1990, a patient at HEA had a
shunt in his leg used for attaching a dialysis catheter. The shunt was pulsating and leaking blood. The
charge nurse directed Perkins to take the patient’s vital signs and to re-dress the shunt wound. Part
of Perkins’ job was to listen for “bruits” (or unusual noises). As Perkins leaned over the patient’s leg to
listen for bruits near the shunt, the leg ruptured. The entire room was sprayed with blood. Perkins
had blood all over her body and in her mouth, eyes, and ears.
The patient was infected with hepatitis C, a fact not known to Perkins prior to the rupture. Perkins
testified she did not e ven know what hepatitis C was at that time. A written report of the incident
was made, and Perkins was informed by the director of nursing at HEA that, because the patient
had hepatitis C, Perkins needed to be tested. A letter in evidence from HEA to its insurance carrier
regarding this event described the protocol for testing for hepatitis C infection. The tests should
be conducted shortly after possible e xposure in order to determine whether the exposed person
had been previously infected. Six months later a second test should be performed to determine if
the dise ase had actually been contracted. A third test is recommended at one year after exposure.
Perkins was tested on October 11, 1990, shortly after the event, and the test results were negative.
The testing physician recommended that she be retested six months after her exposure. However,
no other testing was done until late 1995 when Perkins had pneumonia or early 1996 when she was
seen at the University of Iowa Hospitals and Clinics. Through these tests, Perkins was found to have
abnormal liver function, but she was *43 not actually diagnosed with hepatitis C until April 1996.
Perkins filed a workers’ compensation claim in October 1996. HEA defended on the grounds that this
was an occupational disease under Iowa Code chapter 85A (1995), and her claim was barred by the
one-year statute of repose under section 85A.12. In the alternative, HEA claimed, if this was an “injury”
under Iowa Code chapter 85, it was barred by the two-year statute of limitations of section 85.26(1).
Perkins responded that this event did not result in an occupational disease under chapter 85A, and as
to the statute of limitations under chapter 85, her injury had not been discovered until 1995 or 1996.
Under our discovery rule, she claims, her application for benefits was timely.
Our review of an industrial commissioner’s decision is on error, not de novo. We, like the district court,
are bound by factual findings made by the commissioner so long as those findings enjoy substantial
support in the record made before the agency. [***] The industrial commissioner found that Perkins
was put on “inquiry notice” at the time she was advised of the seriousness of hepatitis C exposure
and the ne cessity of further testing. While the focus of the industrial commissioner and the reviewing
courts has been on the application of the discovery doctrine, we must first focus on the employer’s
claim that this was an occupational disease, not an industrial injury. If it was an occupational disease,
Iowa Code se ction 85A.12 would indisputably defeat the claim be cause that section is a statute of
repose, not a statute of limitation. Therefore, the discovery rule would be inapplicable to save the
plaintiff’s case. [***] We therefore address the question of whether this was an occupational disease
or an industrial injury.
III. The Occupational Disease Argument.
The

statutory definition describes an occupational disease in terms of a worker’s “exposure” to

conditions in the workplace. [***] The term “exposure” indicates a passive relationship between the
532 | Statutes of Limitation and Repose

worker and his work environment rather than an event or occurrence or series of occurrences, which
constitute injury under the Workers’ Compensation Act. [c]
We have said:
[A]n “injury” is distinguished from a “disease” by virtue of the fact that an injury has its origin
in a specific identifiable trauma or physical occurrence or, in the case of repetitive trauma,
a series of such occurrences. A disease, on the other hand, originates from a source that is
neither traumatic nor physical. [c]
It is significant in determining whether Perkins suffered an occupational disease, or an injury under
workers’ compensation, that Perkins’ infection was linked to a sudden, specific incident of exposure.
The contraction of disease is de emed an injury by accident in most states if due to some
unexpected or unusual event or *44 exposure. Thus, infectious disease may be held accidental
if the germs gain entrance through a scratch or through unexpected or abnormal exposure to
infection. 3 Larson’s Workmen’s Compensation Law § 51, at 51–1 (2002).
[***]
We agree with the industrial commissioner, the district court, and the court of appeals that this was
an “injury” under the workers’ compensation provisions of Iowa Code chapter 85, not an “occupational
disease” unde r chapte r 85A. The issue still to be resolved is the application of the statute of limitations
and the discovery rule.
Under Iowa Code section 85.26(1),
[a]n original proceeding for benefits under this chapter or chapter 85A … shall not be
maintained in any contested case unle ss the proceeding is commenced within two years from
the date of the occurrence of the injury for which benefits are claimed….
This two-year statute of limitations is tempered by our “discovery” rule, which tolls the running of
the statute until the injury is or should have be en discovered. [c] The application of the discovery rule
in personal injury and workers’ compensation cases has spawned considerable litigation in this court.
The key issue has be en: What did the claimant know concerning the elements of her claim, and when
did she know it? The issue turns on whe ther Perkins was sufficiently on notice of an injury so as to
have a duty to investigate further, under the reasonable-diligence standard, by arranging to be tested
again after six months and one year from her exposure. This notice of the ne ed to investigate has be en
referred to as “inquiry notice.” [c]
Knowledge is impute d to a claimant when he gains information sufficient to alert a reasonable person
of the ne ed to investigate. As of that date he is on inquiry notice of all facts that would have be en
disclosed by a reasonably diligent investigation. [c] The industrial commissioner found that the statute
of limitations, Iowa Code § 85.26(1), barred Perkins’ claim because she was on inquiry notice of the key
elements of her claim immediately upon her exposure to the patient’s blood.
[***] [T]he two-year limitation period begins to run when “the employee discover[s] or in the e xercise
Statutes of Limitation and Repose | 533

of reasonable diligence should … discover [ ] the nature, seriousness and probable compensable
character” of his injury or disease. [c] We have held that a claimant must have knowledge, either actual
or implied, of all three characteristics of the injury before the statute begins to run. …
In Ranney the claimant was exposed to toxic paint solvents in his job from 1975 to 1981. In 1985 he
was diagnosed with Hodgkin’s disease. Following his diagnosis, he inquired of several doctors about
a possible connection between his exposure to the che micals and his disease. In 1987 or 1988 his
wife was a law student, and she discusse d with Ranney the possibility of a connection between the
exposure to chemicals and his health condition. [c] In 1991 Ranney asked a treating doctor about a
connection, and the doctor confirmed a link between the job and his injury. Ranney filed his workers’
compensation case in 1991 and relied on the discovery rule to avoid the application of the statute of
limitations.
We rejected Ranney’s claim that inquiry notice did not apply to his case be cause he suffered from a
latent injury. We said:
When Ranney was diagnosed with Hodgkin’s disease in 1985, his condition was no longer
latent; it was then known. At that point, Ranney was subject to the same duty to investigate
as is any other plaintiff who knows he has sustaine d an injury. Id. at 154. We also rejected
Ranney’s argument that he could not be charged with inquiry notice unle ss he was aware
of the probable connection between his injury and his employment. We think that once a
claimant knows or should know that his condition is possibly compensable, he has the duty
to investigate . The purpose of the investigation is to ascertain whether the known condition
is probably, as opposed to merely possibly, compensable. Ranney, 582 N.W.2d at 155 (citations
omitted). [***]
In LeBeau v. Dimig, 446 N.W.2d 800 (Iowa 1989), the plaintiff was injured in an automobile accident on
November 12, 1983. She made a claim for minor head injuries and was paid by the other driver, Dimig.
In August 1985 LeBeau was diagnosed as having epilepsy. On July 31, 1987, she sue d Dimig, claiming
the epilepsy was caused by the 1983 accident. LeBeau, 446 N.W.2d at 801. The defendant raised the
two-year statute of limitations under Iowa Code se ction 614.1(2). The plaintiff resisted a motion for
summary judgment based on that defense by claiming she did not know, until 1985, that she had
epilepsy. We said:
The issue raised in this appeal, however, is apparently one of first impression: When an
accident occurs causing minor injuries and later more serious injuries appear, does the
plaintiff’s cause of action “accrue” for statute of limitations purposes at the time of the first
injury; at the time of the later manifestation of another injury; or are there two time periods,
one commencing with the first injury and the other upon discovery of the se cond injury? Id.
at 801–02. We characterized this as a “traumatic event/latent manifestation” case, or one in
which the plaintiff has sustained both immediate and latent injuries caused by a noticeable,
traumatic occurrence. At the time of the traumatic event, the plaintiff realizes both that he is
injured and what is responsible for causing the injury. The full e xtent of the harm, however,
has not become manifested. Id. at 802 [c].

534 | Statutes of Limitation and Repose

Although we characterized LeBeau’s argument as “compelling,” we rejected it because her theory
would allow splitting of a cause of action, resulting in the application of different statutes of limitation
and inserting uncertainty into the resolution of such cases. [c] In LeBeau we he ld the plaintiff’s
initial complaint of a minor injury and her collection of a relatively small settlement ($200) evidenced
sufficient awareness of her injury to subject her claim to the two-year statute of limitations. Id. at
803. This “seriousness” component of inquiry notice, [c], is not triggered by “every minor ache, pain,
or symptom” as we have note d. [cc] Therefore, the failure to file a claim within two years of the
occurrence of the injury may be e xcused if the claimant had no reason to believe the condition was
serious. If the injury is trivial or minor, or the symptoms indicate no serious problem, the seriousness
component is not met. [c]
The industrial commissioner in assessing the discovery issue stated:
Claimant knew shortly after the incident at the nursing home that she had be en exposed to
hepatitis C. She was tested, and informed of the seriousness of the dise ase or condition [which
she did not yet have]. She was counseled to return for further testing in six to twelve months
for a final determination regarding her status. She was fully informed of the ne ed for the
testing, and underwent the initial tests. Claimant did not *47 follow-up with the me dical care
providers to undergo the later testing. Claimant knew of the possibility that she contracted
hepatitis C at the time she took the initial test, October 11, 1990. As of October 11, 1990,
she had be en informed that the patient had hepatitis C. Based on the e vidence, it cannot
be de termined that claimant was unaware of the seriousness of her condition, and that the
condition was work-related. Claimant failed to file her petition within two years after the date
of the injury, which was October 2, 1990. As a result, she takes nothing from these proceedings.
(Emphasis added.)
None of our cases, and none of those cited by the HEA or the industrial commissioner, have applie d
the rule of law announced in the commissioner’s ruling, i.e., that exposure to a disease triggers a duty
to inquire further. In all of the Iowa cases discussed in this opinion, the claimant knew he or she was
injured, not merely exposed to injury, before the duty to inquire arose. In some cases the claimant
did not know how serious the injury was or whether it was work-related, but in all of the cases the
claimant knew he or she had suffered an injury before the statute of limitations began to run.
The Oklahoma Supreme Court, in another hepatitis C case, reached the same conclusion:
Mere e xposure to an infectious disease, no matter how threatening, is not enough to constitute
a compensable event—it is not “accidental injury.” An on-the-job exposure must pass through
the incubation period and develop into an infectious disease before it may be vie wed as an
accidental injury compensable by the employer. An employer’s apprehension of an employee’s
exposure

to a dise ase, even when followed by the

vaccination, cannot be

act of administering prophylactic

translated into compensation liability for an “accidental personal

injury.” [c]
If there is anything clear in this record with respect to the “condition” to which the commissioner
referred, it is that as of the time Perkins is charged with inquiry notice she had not be en injured.
Statutes of Limitation and Repose | 535

She had be en exposed through a traumatic and frightening event, but she was not injured. If, as we
have said, inquiry notice doe s not arise from “every minor ache, pain, or symptom,” [c], inquiry notice
surely cannot be triggered when there is no ache, pain, or symptom of an injury. [***] Our workers’
compensation law does not provide a remedy for a person who has merely been exposed to injury.
We hold the date of injury was the date Perkins discovered she had hepatitis C, April 20, 1996, the
date it was diagnosed. It did not commence from the date she was exposed to it. The industrial
commissioner’s application of a contrary rule in this case is “affected by other error of law,” Iowa Code
§ 17A.19(8)(e), and must be reversed. We therefore affirm, although on different grounds, both the
ruling of the court of appeals and the judgment of the district court.
Note 1. The court states that it affirms, “although on different grounds,” the lower court’s rulings. On
what grounds does this court affirm and what are the grounds on which the lower courts ruled?
Note 2. What is the knowledge standard required under the discovery rule? What policy concerns do
you suspect are likely to underlie this choice of standard?
Note 3. Why do you think the court refrains from finding that “exposure to a dise ase triggers a duty to
inquire further”? When does this court suggest a “duty to investigate” may arise?
Note 4. Statutes of Limitation and Repose serve multiple important functions as you see in Perkins.
However, they impose costs on certain stakeholders and the system overall, as well. What doctrines
do you imagine might they complicate? What purposes might they frustrate? What solutions do you
imagine courts could undertake to balance out or minimize the te nsions among the se competing
purposes? Should legislatures be involved?

536 | Statutes of Limitation and Repose

PART V

MODULE 5: PRODUCTS LIABILITY LAW

Module 5: Products Liability Law | 537

25. Developments in Tort Law and Early
Products Liability Law
Thomas v. Winchester, Court of Appeals of New York (1852)
(6 N.Y. 397)
This is an action brought to recover damages from the defendant for negligently putting up, labeling
and selling as and for the e xtract of dandelion, which is a simple and harmless medicine, a jar of
the e xtract of belladonna, which is a deadly poison. [***] The plaintiff Mary Ann Thomas, [***] being
in ill health, her physician prescribed for her a dose of dandelion. Her husband purchased what
was believed to be the me dicine prescribed, at the store of Dr. Foord, a physician and druggist in
Cazenovia, Madison county, where the plaintiffs reside.
A small quantity of the me dicine thus purchased was administered to Mrs. Thomas, on whom it
produced very alarming effects; such as coldness of the

surface

and e xtremities, feebleness of

circulation, spasms of the muscles, giddiness of the he ad, dilation of the pupils of the e yes, and
derangement of mind. She recovered however, after some time, from its effects, although for a short
time her life was thought to be in great danger.
The me dicine administered was belladonna, and not dandelion. The jar from which it was taken was
labeled “1/2 lb. dandelion, prepared by A. Gilbert, No. 108, John-street, N. Y. Jar 8 oz.” [***]
[Defendant Winchester manufactured, purchased and sold “certain vegetable e xtracts for medicinal
purposes.” He hired “A. Gilbert” as an assistant and they used Gilbert’s name on the labe ls be cause
that increased sales. The mislabeled e
xtract in Mrs. Thomas’ jar was manufactured by another
manufacturer or dealer, not Winchester, sold to Aspinwall with Gilbert’s label on it, and then sold it
Foord who, believing it was accurately labeled, sold it to Mrs. Thomas.]
The e xtract of dandelion and the extract of belladonna resemble each other in color, consistence,
smell and taste; but may on careful examination be distinguishe d the one from the other by those who
are well acquainted with these articles.
[***] The case depends on [***] whether the defendant, being a remote vendor of the me dicine, and
there being no privity or connection between him and the plaintiffs, the action can be maintained.
If, in labeling a poisonous drug with the name of a harmless medicine, for public market, no duty was
violated by the defendant, excepting that which he owed to Aspinwall, his immediate vendee, in virtue
of his contract of sale, this action cannot *408 be maintained. If A. build a wagon and sell it to B., who
sells it to C., and C. hires it to D., who in consequence of the gross negligence of A. in building the
wagon is overturned and injured, D. cannot recover damages against A., the builder. A.’s obligation
to build the wagon faithfully, arises solely out of his contract with B. The public have nothing to do
Developments in Tort Law and Early Products Liability
Law | 539

with it. Misfortune to third persons, not parties to the contract, would not be a natural and necessary
consequence of the builder’s negligence; and such negligence is not an act imminently dangerous to
human life.
So, for the same reason, if a horse be de fectively shod by a smith, and a pe rson hiring the horse from
the owner is thrown and injured in consequence of the smith’s negligence in shoe ing; the smith is not
liable for the injury. The smith’s duty in such case grows exclusively out of his contract with the owner
of the horse; it was a duty which the smith owed to him alone, and to no one else. And although the
injury to the rider may have happened in consequence of the negligence of the smith, the latter was
not bound, either by his contract or by any considerations of public policy or safety, to respond for his
breach of duty to any one except the person he contracted with
But the case in hand stands on a different ground. The defendant *409 a dealer in poisonous drugs.
Gilbert was his agent in preparing them for market. The de ath or great bodily harm of some person
was the natural and almost inevitable consequence of the sale of belladonna by means of the false
label. Gilbert, the defendant’s agent, would have be en punishable for manslaughter if Mrs. Thomas had
died in consequence of taking the falsely labeled medicine. Every man who, by his culpable negligence,
causes the death of another, although without intent to kill, is guilty of manslaughter. (2 R. S. 662, §
19.) [***] And this rule applies not only where the de ath of one is occasioned by the negligent act of
another, but where it is caused by the negligent omission of a duty of that other. [c] Although the
defendant Winchester may not be answerable criminally for the negligence of his agent, there can be
no doubt of his liability in a civil action, in which the act of the agent is to be regarded as the act of the
principal.
In respect to the wrongful and criminal character of the negligence complained of, this case differs
widely from those put by the defendant’s counsel. No such imminent danger existed in those cases.
In the present case the sale of the poisonous article was made to a de aler in drugs, and not to a
consumer. The injury therefore was not likely to fall on him, or on his vendee who was also a dealer;
but much more likely to be visited on a remote purchaser, as actually happened. The defendant’s
negligence put human life in imminent danger. Can it be said that there was no duty on the part of
the defendant, to avoid the creation of that danger by the e xercise of greater caution? or that the
exercise of that caution was a duty only to his immediate *410 vendee, whose life was not endangered?
The defendant’s duty arose out of the nature of his business and the danger to others incident to its
mismanagement. Nothing but mischief like that which actually happened could have be en expected
from sending the poison falsely labeled into the market; and the defendant is justly responsible for the
probable consequences of the act.
The duty of exercising caution in this respect did not arise out of the defendant’s contract of sale to
Aspinwall. The wrong done by the defendant was in putting the poison, mislabeled, into the hands
of Aspinwall as an article of merchandise to be sold and afterwards used as the e xtract of dandelion,
by some person then unknown. [***] The defendant’s contract of sale to Aspinwall does not excuse
the wrong done to the plaintiffs. It was a part of the me ans by which the wrong was effected. The
plaintiffs’ injury and their remedy would have stood on the same principle , if the de fendant had given
the belladonna to Dr. Foord without price, or if he had put it in his shop without his knowledge, under
circumstances which would probably have led to its sale on the faith of the label. [***]
540 | Developments in Tort Law and Early Products Liability Law

The defendant, by affixing the labe l to the jar, represented its contents to be dandelion; and to have
been “prepared” by his agent Gilbert. The word ‘prepared’ on the label, must be understood to mean
that the article was manufactured by him, or that it had passed through some process under his
hands, which would give him personal knowledge of its true name and quality.
[***] [T]he defendant cannot, in this case, set up as a defense, that Foord sold the contents of the jar
as and for what the defendant represented it to be. The label conveyed the ide a distinctly to Foord that
the contents of the jar was the e xtract of dandelion; and that the defendant knew it to be such. So far
as the defendant is concerned, Foord was under no obligation to test the truth of the representation.
[***]
GARDINER, J. concurred in affirming the judgment, on the ground that selling the belladonna without
a label indicating that it was a poison, was declared a misdemeanor by statute; (2 R. S. 694, § 23;) but
expressed no opinion upon the question whether, independent of the statute, the defendant would
have been liable to these plaintiffs.
*412 [***] Judgment affirmed.
Note 1. Why might the case previously have depended on the fact that Thomas bought the me dicine
from “a remote vendor”? Why does this court determine that it does not?
Note 2. How does the court distinguish precedents to the contrary offered by the defendant?
Note 3. How would you articulate the breach of due care and the scope of the duty defendant owed
Mrs. Thomas? Might it have be en reasonable to inquire whe ther Foord also had a duty, and if so, what
might the scope of that duty have required?
Note 4. Is Winchester effectively being held strictly liable for Mrs. Thomas’ injuries even though the
court refers to it as negligence? Why or why not?
Note 5. What was the significance of Gilbert’s having prepared and labeled the extract?

The Progressive-Era Rise of the First Consumer Protection Laws
Before the advent of contemporary products liability law, consumers often found that laws did not
meaningfully enable them to recover in tort law from injuries suffered as a result of the actions of
manufacturers, distributors and vendors of food, drugs and other products including automobiles.
Consumer protection and products liability law are both a product of the twentieth century, and
their precursors were actions in tort law suing for injury or wrongful death. However, the plaintiff
often faced hurdles that could prove insurmountable such as the requirement of a contract or privity
to ground a duty, as well as difficulties asserting what happened and what fault, if any, had led to
their injuries. The increasing complexity of manufacturing made injuries more frequent but also more
remote and out of view from the consumer’s perspective. The increasing attenuation of the product
supply chain has also meant more intermediaries between the manufacturer (along with its subDevelopments in Tort Law and Early Products Liability Law | 541

manufacturers, potentially) and the ultimate user of the product. These factors put increasing social
and legal pressure on the legal system.
Around the turn of the century, the cause of consumer welfare gaine d national momentum, especially
with respect to food manufacturing and service. Individual states had begun promulgating laws to
safeguard the purity and safety of foods. Now the attention was trained on the federal level. The
push for federal legislation came partly in connection with the efforts of the so-called “muckraking
journalists” dedicated to improving the lot of workers and the poor; ending child labor; and exposing
corporate and governmental corruption. Progressive reformers had been lobbying for legislation since
the 1880s, and over 100 bills had been considered and rejected before one was finally adopted.
In 1905, a sensationalist and melodramatic piece

of fiction was published which incorporated

extensive research and reporting on the me at-packing industry. Upton Sinclair’s novel, The Jungle
(1905) disseminated vivid accounts of shockingly bad conditions in meat processing and
manufacturing plants. The novel has been credited with bringing the imminent legal transformation
to its tipping point. (“[T]he nauseating condition[s] that Upton Sinclair captured in The Jungle was
the final precipitating force behind both a meat inspection law and a comprehensive food and drug
law.” (See https://www.fda.gov/about-fda/changes-science-law-and-regulatory-authorities/parti-1906-food-and-drugs-act-and-its-enforcement)). According to Dean Prosser in his seminal article
on the collapse of privity as a restrictive requirement on tort law, The Jungle
“was the best selling book of the year, was translated into seventeen languages, and by 1922
had sold 150,000 copies. Intended as a piece

of propaganda for socialism, The

Jungle succeeded in becoming instead a minor Uncle Tom’s Cabin of the war against bad food.
The author said later that he had aime d at the public’s heart, and by accident hit it in the
stomach.”
William L. Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099,
1105–06 (1960)
Whatever its faults as a literary work, The Jungle was a hit, and it played a significant part in what
would become the revolution transforming tort law from within. Sinclair’s novel had depicted animals
who were often sick or injured and being raised and slaughtered in a state of staggering filth. Workers
in the novel were treated with about as much humanity as the animals; the me at packing industry
was cast as ruthlessly e
xploitative

of immigrants and other economically and legally vulnerable

communities. During debates over the passage of potential food safety legislation, legislators heard
horror stories of poisonous red dyes and other toxins being used casually throughout the food
manufacturing industry. These stories built on Sinclair’s damning account and helped to catalyze
momentous reform.
The following year, President Theodore Roosevelt signed the Pure Food and Drug Act of 1906 and
the Meat Inspection Act into law. In so doing, Roosevelt ushered in a new era of federal consumer
protection and regulatory oversight of medicines, food, and meat. Various protections against medical
quackery and deceptive advertising accompanied more stringent rules to ensure that food would
henceforth be unadulterated. The Pure Food and Drug Act also paved the way for the creation of
542 | Developments in Tort Law and Early Products Liability Law

the Food and Drug Administration in 1930; from that time on, the FDA was the central source of
regulation for substances ingested by humans (other than the Bureau of Alcohol, Tobacco, Firearms
and Explosives, which was formed in 1972 and plays a rather different role).
In addition, Progressive-Era reforms led to the passage of the Federal Trade Commission Act in
1914, which created the eponymous independent agency charged with antitrust enforcement and
consumer protection. Under the FTC Act,
[T]he Commission is empowered, among other things, to (a) prevent unfair methods of
competition, and unfair or deceptive acts or practices in or affecting commerce; (b) seek
monetary redress and other relief for conduct injurious to consumers; (c) prescribe trade
regulation rules defining with specificity acts or practices that are unfair or de ceptive, and
establishing requirements designed to prevent such acts or practices; (d) conduct
investigations relating to the organization, business, practices, and management of entities
engaged in commerce; and (e) make reports and legislative recommendations to Congress.
15 U.S.C. §§ 41-58, as amended.
§ 45. Unfair methods of competition unlawful; prevention by Commission (Sec. 5) (a)
Declaration of unlawfulness; power to prohibit unfair practices; inapplicability to foreign trade
(1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or
practices in or affecting commerce, are hereby declared unlawful.

Federal Regulation and the Slow Changes in State Tort Law
In retrospect, Thomas v. Winchester (the poison mislabeling case, supra at the start of Module 5),
can be se en as a harbinger of the Progressive Era’s profound changes to the legal landscape. Thomas’
focus on labeling hints at the core concerns that would drive the progressive reform agenda for
legal change: concerns related to consumer deception and injury to both consumers and workers.
Put another way, progressive legal reforms promoted transparency, truth, safety and health. In their
commitments to an increasingly robust set of protections for consumers and workers, however, these
legislative changes did not always provide a right of action for injured consumers. Privity was also still
a bar in cases in which there was no contract creating a duty between the parties.
Prior to these progressive reforms, consumers had had little protection against spoiled foods or
injurious conditions. When diners at restaurants were injured by some non-food foreign object in their
food, they were typically unable to recover for their injuries through tort law. Food purveyors could
essentially ask “well, why didn’t you look at your food more carefully?” In other words, caveat emptor
(“buyer beware”) was the default rule. Privity was a formidable hurdle and courts regularly declined
to find for plaintiffs for various technical reasons. Yet in point of fact, this hapless state of affairs
continued for some time even after the Pure Food and Drug Act’s passage in 1906.
For example, in Ash v. Childs Dining Hall Co. (231 Mass. 86) (1918) the presence of a black tack in
Developments in Tort Law and Early Products Liability Law | 543

a blueberry pie served at a restaurant was not in itself evidence of negligence on the part of the
defendant who had prepared the pie . The court held that res ipsa loquitur could not be applie d and
that there could no liability without evidence of some sort of negligent conduct by the defendant
which had caused the tack’s presence in the pie . In Chysky v. Drake Bros. Co. (235 N.Y. 468, 1923), the
plaintiff received a cake from her employer and suffered injuries from a nail contained in a slice of
cake whe n she ate it. The court dismissed her claim due to lack of privity with the cake manufacturer
since it was her employer who had purchased the cake. In Redmond v. Borden’s Farm Products Co. (245
N.Y. 512, 1927), a court went the other way at first. The plaintiff, a fourteen month-old infant, had
allegedly been injured by broken glass contained in a bottle of milk bought for her by her mother and
distributed by the defendant. Glass passed into the infant’s mouth and caused injurie s while she was
drinking the milk. The case was submitted to the jury and the verdict for the plaintiff was unanimously
affirmed by the Appellate Division of the Supreme Court in the First Judicial Department (218 App. Div.
722, 1926). However, on appeal to the Court of Appeals, the case was reversed with no more than the
following per curiam opinion: “Judgments reversed, and new trial granted, costs to abide e vent, on
authority of Chysky v. Drake Brothers Co., 235 N. Y. 468.” In other words, the lack of privity in Chysky
so obviously controlled this decision that no further opinion was needed for reversal. If the fourteen
month-old infant had bought her own milk and been injured drinking it, she could have recovered; that
she was not a preternaturally precocious toddler able to do so appears to have be en her legal case’s
fatal flaw. It is worth pointing out that tort law’s omnipresent figure, Chief Justice Cardozo (as well
as Justice Andrews, among others) concurred. Redmond v. Borden’s Farm Prod. Co., 245 N.Y. 512, 512,
(1927).
Pure

food legislation had improved the

situation for consumers somewhat by creating a legal

obligation on the part of manufacturers to safeguard their food products and to label them accurately.
Recall tort law’s purposes; the legislation served as a deterrent since manufacturers and distributors
had to answer to the U.S. government if they fell out of compliance with the increasing regulations
imposed for food safety. Balanced with businesses’ profit motive, the new regulatory mandate created
incentives to make safer food processing economically efficient. While the se ne w laws protected
consumers’ food sources, they did nothing directly to compensate victims of negligence when
accidents occurred.
In negligence cases, recovery was still extremely limited and cases reflect formalistic, almost absurdly
technical reasoning. Where consumers had a contract of some kind, or were in privity, they were
owed a duty, and thus if the product they used or consumed was defective, recovery in tort might be
allowed. Alternatively, if the defendant had intentionally hidden some defect and consumers lacked
the ability to inspect goods for themselves or could not have discovered defects with their own
ordinary inspection, the defendant would likely be liable in tort law for injuries their conduct caused.
However, the the ory of liability was fraud, not negligence, and it required a different fact pattern with
a higher showing of culpability. It did help to disincentivize the tort of fraudulent concealment but it
did little to help curb negligent conduct.
Although Thomas had dispensed with the privity requirement in cases of mislabeling poisons, it was
only binding authority in New York and even there its scope was limited by the holding which se emed
limited to errors made with respect to labeling or representing a poison or other product carrying a
544 | Developments in Tort Law and Early Products Liability Law

high risk of danger with its use. It was unclear how expansively subsequent courts would interpret it.
Over time, however, other courts did build on Thomas, thus forging the beginnings of contemporary
products liability law. See e.g. Schubert v. J. R. Clark Co. 49 Minn. 331 (1892) (applying Thomas to find
a manufacturer liable with respect to a defective ladder); Devlin v. Smith (89 N.Y. 470 (1882) (applying
Thomas to hold liable the builde r of a 90-foot scaffold for painters after it collapsed, killing the painter
because the scaffold, like the poison, was an inherently dangerous product); Torgesen v. Schultz, 192
N.Y. 156, 157–58, 84 N.E. 956 (1908) (applying Thomas to find a jury question where plaintiff lost an eye
due to the e xplosion of a bottle of carbonated water filled and put upon the market by the defendant).
Many of the

e arly cases in what now is considered modern products liability law arose

at the

boundaries of tort and contract through the ide as of privity and warranty. They also often featured
fact patterns with asymmetrical information, such as when manufacturers or retailers possessed the
ability to inspect or confirm that a product was defect-free while the consumer lacked such an ability.
Many cases arose in the areas of food preparation and processing, including canning and bottling.
Get ready to read a lot of cases about Coca-Cola bottles (and consider why that is). Finally, this
discussion may seem like it’s revisiting ancient history not worth the time to de lve into detail for the
study of tort law in our era. However, the e volution of products liability law—its transformation at
common law and through legislation, its expansion and subsequent contraction, its intense variation
by state—provides an excellent case study in common law. Rather than finding it maddening that the
rule varies so much by jurisdiction, consider the reasons for which different jurisdictions developed
in particular ways. The origins of product liability law left longlasting footprints in the common law
that are worth understanding as a means of contextualizing current laws and gaining the capacity
to anticipate future de velopments. In our era of rapidly changing technological advances, there will
always be ne w questions for jurists to consider. Studying the ways in which courts have clung to rules
or dispensed with them and their rationales provides a toolkit as well as a roadmap.
Sometimes when reading older cases, there is a tendency to dismiss their fact patterns as remote in
time and thus improbable or utterly different from the present moment. Be wary of this tendency;
often the facts remain salient in some way even despite social and te chnological changes. Take the
meatpacking industry as an example. Clearly, many things have changed in the industry due to the
th

major legislation of the 20

century and expansion of the agency powers that regulate the relevant

entities. Notwithstanding those changes, a recent exposé of the industry featured an author with no
experience who applied for a job and received one less than five hours later.
https://www.theatlantic.com/magazine/archive/2021/07/meatpacking-plant-dodge-city/619011
The author of the article, Michael Holtz, reported conditions that ought to remain concerning in
light of the classification of meatpacking workers as “essential” employees who continued working
throughout the COVID-19 pandemic. Many were sickened and some die d in consequence of outbreaks
at meatpacking plants.
Consider whether you think tort law should play a role in governing questions of worker health and
safety at meatpacking plants. Who should determine whether eating industrially processed meat is
important enough to risk workers’ safety? Who suffers if such meat does not remain available?

Developments in Tort Law and Early Products Liability Law | 545

Our first case is one of the e arliest torts cases nationally to establishing a broader duty on the part
of the defendant for injury arising from food even in the absence of privity and without the facts to
sustain a fraud case. It explores a theory of “implied warranty” with a rationale reminiscent of Thomas’
legal reasoning.

546 | Developments in Tort Law and Early Products Liability Law

26. Implied Warranty
Mazetti v. Armour & Co., Supreme Court of Washington (1913)
(75 Wash. 622)
*623 The complaint alleges that the plaintiffs were operating a profitable restaurant in the city of
Seattle, and dealing with the general public as their patrons; that defendant Armour & Co. is engaged
in the business of manufacturing and selling to the public generally meats and products to be use d
as food; that it maintains a place of business in Seattle, Wash., from which it sells and distributes its
goods, representing and holding out to the general public that its goods are pure, wholesome, and
fit food for human beings; that on June 16, 1912, plaintiffs, in the usual course and conduct of their
business, purchased from the Se attle Grocery Company a carton of cooked tongue, prepared and
ready to be use d for food without further cooking or labor; that such package had be en manufactured
and prepared by defendant Armour & Co.; that the carton or container bore its name, and that it was
purchased to be sold to plaintiffs’ customers; that in making such purchase plaintiffs relied upon the
representations of Armour & Co. that said food was pure and whole some and fit for food; that Armour
& Co. were guilty of negligence in manufacturing and preparing the foods purchased, in that in the
center of the carton was a foul, filthy, nauseating, and poisonous substance; that in the due course of
trade plaintiffs served to one of their patrons a portion of the tongue; that the patron ate of it; that he
then and there be came sick and nauseated, and did then and there in the presence of other persons
publicly expose and denounce the se rvice to him of such foul and poisonous food; that the incident
became known to the public generally; that plaintiffs had no knowledge or me ans of knowing the
character of the food served; that its condition could not be discovered until it was served for use—all
to the damage of the plaintiffs, etc., for loss of reputation, business, and lost profits during the life of
their lease. Defendants demurred to the complaint. The demurrer of Armour & Co. was sustained, and
plaintiffs have appealed.
*624 It has been accepted as a general rule that a manufacturer is not liable to any person other than
his immediate vendee; that the action is necessarily one upon an implie d or express warranty, and
that without privity of contract no suit can be maintained; that each purchaser must resort to his
immediate vendor. To this rule certain exceptions have be en recognized: (1) Where the thing causing
the injury is of a noxious or dangerous kind. (2) Where the de fendant has been guilty of fraud or deceit
in passing off the article. (3) Where the de fendant has been negligent in some respect with reference
to the sale or construction of a thing not imminently dangerous.
Within one of these exceptions is to be found the reason for holding the manufacturer of patent or
proprietary medicines to answer at the suit of the ultimate consumer. Direct actions are allowed in
such cases because the manufacturer of medicines is generally shrouded in mystery, and sometimes,
if not generally, they contain poisons which may produce injurious results. They are prepared by the
manufacturer for sale and distribution to the general public, and one purchasing them has a right to
rely upon the implie d obligation of the manufacturer that he will not use ingredients which if taken
Implied Warranty | 547

in prescribed doses will bring harmful results. Reference may be had to the following cases which
sustain, and in which many other cases are cited which sustain, this exception: Thomas v. Winchester,
6 N. Y. 397; Blood Balm Co. v. Cooper, 83 Ga. 457; Weiser v. Holzman, 33 Wash. 87.
Another exception—the doctrine is comparatively recent—is referable [sic] to the modern method of
preparing food for use by the consumer, and the more general and ever-increasing use of prepared
food products. The following are among the more recent cases holding that the ultimate consumer
may bring his action direct against the manufacturer: *625 [***] The contrary is held in the case of
Nelson v. Armour, 76 Ark. 352. This case, though well reasoned along the lines of those causes which
hold that the rule of caveat emptor applies, is not in touch with the modern drift of authority. Some
of the cases hold that the action is for breach of warranty; others that it is to be sustaine d upon
the ground of negligence. A few courts have attributed the growth of this exception to the general
public policy as declared in the pure food laws [c], while others say that the liability for furnishing
provisions which endanger human life re sts upon the same grounds as the manufacturing of patent or
proprietary medicine. [cc].
In the case of Weiser v. Holzman, this court said: ‘The rule doe s not rest upon any principle of
contract, or contractual relation existing between the person delivering the article and the pe rson
injured, for there is no contract or contractual relation between them. It re sts on the principle that
the original act of delivering the article is wrongful, and that everyone is responsible for the natural
consequences of his wrongful acts.’ Although the cases differ in their reasoning, all agree that there
is a liability in such cases irrespective of any privity of contract in the se nse of immediate contract
between the *626 parties.
Indeed, we understand that respondent does not claim that the ultimate consumer, the person who
ate the unfit food, would be denied a right of recovery under modern authority; but it is strenuously
contended that such actions are sustaine d because the consumer has been injured in health and
comfort, that the e xception should not be carried to the e xtent of allowing a retailer of the goods to
sue direct and recover for injury to his business and loss of reputation, that in such cases there must
still be privity of contract. It seems that the test should not rest in finding the plaintiff’s damage in
health or business, but in answering the question whether there has be en a damage which may be
justly attributed to the negligence or a breach of duty on the part of the one who had power and
whose duty it was to prevent the wrong.
Counsel on either side have be en zealous in searching the books, but only one case is submitted
that goes directly to the right of the retailer or middleman to sue in the first instance—Neiman v.
Channellene Oil & Mfg. Co., 112 Minn. 13. The right to recover for loss of trade consequent upon
the selling of impure food was sustained; the court saying, ‘A company which advertises itself as a
manufacturer and seller of pure articles of food must be de emed to have knowledge of the contents of
the articles offered for sale.’ The court held to the doctrine of implied warranty. The suit was brought
by the retailer against his immediate vendor, so that we still have to me et the question of whether the
retailer who has lost his trade can sue over the head of his immediate vendor, or join him with the
manufacturer as in this case. In the light of modern conditions we se e no reason why he should not.
He has be en damaged. He and all othe rs who in the course of trade handle d the unwholesome goods
purchased them relying upon the name and reputation of the manufacturer. The goods were designed
548 | Implied Warranty

for ultimate consumption by an individual patron, and packed to facilitate *627 and make convenient
such resales as might be made pending ultimate consumption.
Every tradesman, whether wholesaler or retailer, is in a sense a consumer, for he buys to resell. In a
way he risks his reputation. He stakes it upon either an express warranty, as printed on the package,
or an implied warranty that the goods are whole some and fit for food. He is injured by the fault or a
breach of duty of the manufacturer, for his immediate vendor, like himself, has no way to test every
sealed package. ‘Remedies of injured consumers ought not to be made to de pe nd upon the intricacies
of the law of sales. The obligation of the manufacturer should not be based alone on privity of contract.
It should rest, as was once said, upon ‘the demands of social justice.
Ketterer v. Armour, supra.
‘We may judicially recognize that the contents are se aled up, not open to the inspection or test,
either of the retailer or of the customer, until they are opened for use, and not then susceptible
to practical test, except the test of eating. When the manufacturer puts the goods upon the
market in this form for sale and consumption, he, in effect, represents to each purchaser that
the contents of the can are suited to the purpose for which it is sold, the same as if an e xpress
representation to that effect were imprinted upon a label. Under these circumstances, the
fundamental condition upon which the common law doctrine of caveat emptor is based—that
the buyer should ‘look out for himself’—is conspicuously absent.’ Tomlinson v. Armour, supra,
75 N. J. Law, 748.
In Pantaze v. West (Ala. App.) 61 South. 42, the suit was brought against the retailer. In discussing the
obligations of the retailer, the court treats him as a consumer within the law, saying: ‘The fact was
established without controversy that the defendant was the keeper of a public eating place, engaged
in the business of serving food to his customers, the public, and, being thus engaged, and holding
himself out as a public purveyor, he was bound to use due care to se e that the foodstuffs served at
his place of business to his customers were fit for human consumption, and could be partaken of
without *628 causing sickness or endangering human life or he alth because of their unwholesome and
deleterious condition, and, for any negligence in this particular in failing to observe this duty which
proximately resulted in injury to one of the patrons of the place, the defendant would be responsible.’
Now, under all authority the imme diate vendor would be liable upon one the ory or another to the
consumer. This being so, it should not be held that the vendor could not sue the manufacturer except
to recoup against a judgment. He might thus be left without remedy. In denying the right to sue an
immediate vendor, Spear, J., in Bigelow v. Maine Central Ry. Co., 110 Me. 105, observed the wonderful
discoveries of the past century and the amazing progress in perfecting known devices. He recalls the
boast of the common law that it was able to adjust itself to the inevitable vicissitudes and changes
that occur in the de velopment of human affairs. ‘The principles of the common law have adapte d
themselves so aptly as to render almost imperceptible the radical transitions that have taken place.
Of little less importance

than the

appe arance

of the

great achievements referred to is the

establishment and development of the canning industry in this country and in other parts of the
world. It may be said that the art of canning, if not invented within the last century, has, at least,
Implied Warranty | 549

assumed the vast proportions which it has now attained within a comparatively few years. It involves a
unique and pe culiar method of distributing for domestic and foreign use almost every product known
to the art of husbandry. The wholesaler, the retailer, and the user of these goods, whether in the
capacity of caterer, seller, or host, sustain an entirely different duty, respecting a knowledge of their
contents and quality, than prevails with regard to knowing the quality of those food products which
are ope n to the inspe ction of the seller or victualer. With reference to the se it may well be considered,
as has been held, that, having an opportunity to investigate and thereby to know the quality of their
merchandise, they are charged with a responsibility amounting to a practical guaranty.
The e arly rules of law were formulated upon the the ory that *629 the provision dealer and the
victualer, having an opportunity to observe and inspe ct the appe arance and quality of the food
products they offered to the public, were accordingly charged with knowledge of their imperfections.
[cc] But, upon the state of facts in the case at bar, a situation arises that cannot in the practical
conduct of the canning business fall within these rules. No knowledge of the original or present
contents of a perfect appearing can is possible in the practical use of canned products. They cannot
be chemically analyzed every time the y are use d. Accordingly, the reason for the rule having ceased, a
new rule should be applie d to the sale and use of canned goods that will more ne arly harmonize with
what is rational and just.’
To the old rule that a manufacturer is not liable to third persons who have no contractual relations
with him for negligence in the manufacture of an article should be adde d another exception, not one
arbitrarily worked by the courts, but arising, as did the three to which we have heretofore allude d,
from the changing conditions of society. An exce ption to a rule will be de clared by courts when the
case is not an isolated instance, but general in its character, and the e xisting rule does not square with
justice. Under such circumstances a court will, if free from the restraint of some statute, declare a rule
that will meet the full intendment of the law. No case has be en cited that is squarely in point with the
instant case; but there is enough in the adjudged cases to warrant us in our conclusion.
The facts stated in the complaint are admitted by demurrer. Plaintiffs have be en injured. No other
person or firm had an opportunity to check the offensive package after it was sealed and sent on
its way. Right and reason demand that any party injured should have a right of recovery against the
first offender without resorting to that circumlocution of action against intervening agents (a doubtful
right at best, Bigelow v. Maine Central, supra), which is demanded where the product as well as the
market *630 is open, and the rule of caveat emptor should in justice apply.
Plaintiffs’ argument is also based on the

pure

food law. It is contended that the negligence

of

defendant is presumed if a violation of the pure food law be shown. This is admitted as a general
proposition by defendant; but it says that the rule applie s only where the statute was intended for
the benefit of the party who brings the suit; that the pure food laws are intended for the benefit
of the consumer alone. [***] The consumer purchases prepared food products to sustain life and
health. The retailer purchase s the same products, depending upon established brands to sustain his
reputation as a dealer in clean and wholesome food. We would be dispose d to hold on this question
that, where se aled packages are put out, and it is made to appe ar that the fault, if any, is that of the
manufacturer, the product was intended for the use of all those who handle it in trade as well as those
who consume it. Our holding is that, in the absence of an express warranty of quality, a manufacturer
550 | Implied Warranty

of food products under modern conditions impliedly warrants his goods when dispensed in original
packages, and that such warranty is available to all who may be damaged by reason of their use in the
legitimate channels of trade.
We regard this case, in so far as the dealer is permitted to sue the manufacturer, as one of first
impression. We think the complaint states a cause of action. If there is no authority for the remedy, ‘it
is high time for such an authority.’ Ketterer v. Armour, supra.
The judgment is reversed, and the cause remanded, with instructions to overrule the demurrer.
Note 1. Exceptions to the Requirement of Privity. The court states that the rule at common law up
until that point has been that “a manufacturer is not liable to any person other than his immediate
vendee; that the action is necessarily one upon an implie d or express warranty, and that without
privity of contract no suit can be maintained.” It identifies three e xisting exceptions: (1) Where the
thing causing the injury is of a noxious or dangerous kind. (2) Where the de fendant has been guilty of
fraud or deceit in passing off the article. (3) Where the de fendant has been negligent in some respect
with reference to the sale or construction of a thing not imminently dangerous.
The first category often involved cases of mislabeling poisons or mistakes by chemists or others
handling substances that had the

power to injure

or kill (as you saw in Thomas v. Winchester,

supra). The se cond clearly marks off any actors seeking to dupe others and eliminates the privity
requirement for bringing actions against them; this is the action for fraud, however, not negligence.
The third allows a negligence action in cases where an actor makes or sells something not imminently
dangerous (but inherently dangerous, or likely to become injurious when negligently made). This third
category was not widely accepted across the nation (as you will see in MacPherson v. Buick, infra) but
it had begun to be tested in various courts and still required a showing of negligence. Mazetti adds
a fourth exception, explaining that tort law must evolve in the face of “the changing conditions of
society”:
“in the absence of an express warranty of quality, a manufacturer of food products under
modern conditions impliedly warrants his goods when dispensed in original packages, and that
such warranty is available to all who may be damaged by reason of their use in the legitimate
channels of trade.”
Can you restate the Mazetti rule, above, to identify who may, and who may not use it to recover if
injured by a food product? What culpability standard appears to apply?
Note 2. Which of tort law’s purposes seems (or seem) to be driving the court’s reasoning? Where in
the opinion do you see language in support of your conclusion?
Note 3. Review of Negligence Per Se’s Requirements and Limits. The majority refers to the pure
food laws and, implicitly, to a theory of negligence pe r se base d on a statutory violation. However, the
various statutes appear to be limited to the consumer’s benefit, and the negligence pe r se doctrine, in
defendant’s argument, pertains to the party bringing suit. In this case, the party bringing suit was not
the consumer but a vendor. Thinking back to negligence per se, can you recall why this would matter?
How do you explain the court’s working around this limitation?
Implied Warranty | 551

Note 4. What does the court mean when it writes: “Every tradesman, whether wholesaler or retailer,
is in a sense a consumer, for he buys to resell. In a way he risks his reputation”? Does the court
seem to be pointing to a regime of strict liability or negligence? Why might one regime or another be
normatively desirable here?

Coca-Cola Bottling Works v. Lyons, Supreme Court of Mississippi,
Division B. (1927)
(145 Miss. 876)
The Coca–Cola Bottling Works appeals from a judgment for $2,500 recovered by the appellee, Mrs.
Fred Lyons, as damages for personal injuries received by her on account of drinking a portion of a
bottle of Coca–Cola which contained a quantity of broken glass.
We shall state only such of the facts as are ne cessary to an understanding of the de cision of the case.
The appellee, Mrs. Lyons, in company with her friend, Mrs. Jackson, drove in an automobile, to the
Belen Drug Store, at Belen, in front of which they parked, and ordered drinks to be brought to them.
The e xact testimony on this particular point is that, “We drove up in front of the drug store, and
ordered cokes.” A clerk in the drug store brought two bottles of Coca–Cola to the ladies, which they
proceeded to drink, and Mrs. Lyons swallowed a quantity of broken glass which was in the bottle of
Coca–Cola she drank from. The bottle of Coca–Cola in question in this case had be en manufactured,
bottled, sealed, and delivered to the drug store to be sold to the public in the retail trade. The bottle
was unsealed, or we may say uncapped, by the clerk in the drug store just before he delivered it to
Mrs. Lyons. The above–stated testimony in the record is undisputed.
When the two ladies drove up and stoppe d in front of the drug store, Mrs. Jackson was the one who
ordered the drinks, and she also paid for them; but the drinks were ordered for both of the ladies, and
a bottle was delivered to each of them.
Mrs. Lyons suffered severe

internal injuries on account of swallowing the

broke
n glass in the

Coca–Cola, and she testified that she suffered for many months from the effects of the glass in her
stomach. There was about a tablespoonful of the broken glass in the bottle.
The recovery is based solely upon the the ory that the Coca–Cola company was liable upon an implie d
warranty that the bottled drink was pure and wholesome, and that the fact that there was glass in the
bottle when it was sealed and put upon the market for the public created liability for the injury to the
one who drank it, regardless of whether the manufacturer was guilty of negligence or not. This rule is
established in this state by the cases of Coca–Cola Bottling Co. v. Chapman, 106 Miss. 864; Rainwater
v. Coca–Cola Co. 131 Miss. 315; and Grapico Bottling Works v. Ennis, 140 Miss. 502.
This being a case, then, grounded upon the the ory of the breach of an implied warranty, we may
discard any question arising in the record with reference to the right to recover on account of the
negligence of the bottler, and proceed to ascertain whether or not recovery upon the other theory,

552 | Implied Warranty

that is, the breach of an implied warranty, can be maintained in the case. In such a case as the one
before us three things only are to be ascertained, namely:
(1) Was the glass in the bottle when it left the factory and was offered to the public?
(2) Did the consumer have title and rightful possession of the bottle?
(3) Did the consumer receive injury from drinking the Coca–Cola with the glass in it?
The main point presented for reversal of the judgment is that, since the right of recovery depends
upon the breach of an implied warranty on the part of the manufacturer that the bottled goods were
pure and wholesome, there can be no recovery in the case be cause there was no implied warranty of
the purity of the drink for the reason that there was no contractual relation between the injured party,
Mrs. Lyons, and the Coca–Cola company, or the retailer, Belen Drug Company.
It is contended that Mrs. Lyons had no contract with the clerk at the drug store who sold and delivered
the Coca–Cola, for the reason that Mrs. Jackson, the lady friend with *307 her, ordered and paid for
the drinks for both of them. It is urged that, therefore, there was no contractual relation between Mrs.
Lyons and the manufacturer of the Coca–Cola; that the bottle of Coca–Cola was not purchased by
Mrs. Lyons, but was given to her by Mrs. Jackson; that, consequently, Mrs. Lyons cannot recover upon
the the ory of a breach of warranty; and that since she has made no e ffort to recover upon the theory
of negligence the case must fail.
We have carefully considered the question, and it appears to be a ne w proposition in this state, so far
as we are able to discover, and we are of opinion that the position of appellant is not maintainable,
because, as we se e it, the bottle of Coca–Cola which Mrs. Lyons drank was at least a gift to her by her
friend, Mrs. Jackson, and since the gift carried with it the title, and the implied warranty runs with
the title, Mrs. Lyons was the owner, and rightfully in possession thereof as one of the public when she
drank the Coca–Cola, and that the manufacturer impliedly warranted the purity of the drink to such
of the public as be came the rightful possessor and owner of the Coca–Cola. Therefore, if the drink
was injurious by reason of having glass in it, the bottling company was liable to the consumer.
There is another theory which might be offered to sustain our view just expressed, and that is that
the purchase of the two bottles of Coca–Cola by Mrs. Lyons and Mrs. Jackson was a joint purchase;
that is, that the sale by the drug clerk was to both of these ladies, regardless of which one ordered or
paid for the drinks, the ide a being that it would make no difference which one of the parties ordered
the drinks, the y were sold to both of the ladies, and it would not be material which one paid for them,
because the contract of sale had already been made between the seller and the two purchasers, and
the payment for the drinks was merely the se ttlement of the obligation or debt incurred by both.
However, we feel that it would be be tter to rely upon our first view than upon the latter, because it
seems that the first one is the soundest.
Complaint is made by the appellant that a certain instruction granted the appellee presented an
erroneous theory to the jury, in that it told the jury that–
“If the defendant manufactured or bottled and placed upon the market the bottle of beverage called
‘Coca–Cola’ in question in this case, for human consumption, and that the plaintiff, Mrs. Lyons,
Implied Warranty | 553

purchased the said bottle of beverage in due course of trade, *** and that the said bottle of Coca–Cola
so purchased contained a quantity of small particles or pieces of glass therein, *** and plaintiff was
thereby damaged, it is your duty to return a verdict for the plaintiff.”
The e vil claimed to exist in this instruction is that it told the jury they should find for the plaintiff if
the defendant manufactured and placed on the market the bottle of beverage in question, regardless
of whether the glass got into the bottle after it left the factory, or regardless of whether the method of
bottling employed by the manufacturer was such that the glass could not have gotten into the bottle
until after it left the manufacturer.
We do not think the instruction was erroneous because it referred to the bottle of Coca–Cola in
question, and, as the testimony was undisputed that this bottle came from the manufacturer sealed,
the glass must have be en in the bottle before it left the factory. There is no conflict in the e vidence on
this point. Consequently the only thing left to the jury to decide was whether or not there was in fact
glass in the bottle of Coca–Cola which Mrs. Lyons drank; and as the undispute d testimony shows that
the glass was in the bottle of Coca–Cola which she drank, and that it damaged her, the instruction
was correct, even though it may be considered equivalent to a peremptory instruction to find for the
plaintiff. If the suit had been predicated on the the ory of negligence inste ad of the the ory of implied
warranty, then our conclusion as to its correctness would be otherwise.
In the Chapman Case, supra, the court said:
“There is e vidence for appellant that its system for cleansing and filling bottles is complete,
and that there is watchfulness to prevent the introduction of foreign substances. Nevertheless,
the little creature [mouse] was in the bottle.”
So, if the broken glass was in the bottle when it left the factory, the manufacturer is liable for the
damage done the consumer, even though the method of bottling was complete and perfect.
But the appellant contends that, when the manufacturer shows that the me thod of bottling is so
efficient and perfect that a foreign substance cannot get into a bottle, then a question of fact arises
for the de termination of the jury as to whether or not the foreign substance got into the bottle after
it left the factory, and that the court in the case before us erred in not permitting the appellant to
submit that question to the jury.
The

point is interesting, but we

do not de cide

now whether such proof on the

part of the

manufacturer as to the perfect and efficient method of bottling would raise a question of fact as to
whether or not the foreign substance got into the bottle before or after it was sealed and placed upon
the market, because the record in this case does not show any such perfect and complete me thod
of bottling as would be sufficient to raise the que stion as contended for by the appellant; and this
being true, we de cline to de cide it at this time. The Chapman Case, supra, seems to be different in this
regard.
*308 This record shows that there were inspe ctors to inspect the bottles of Coca–Cola after they were
sealed and before the y left the plant to see that they contained no foreign substance. The Coca–Cola

554 | Implied Warranty

company failed to put these inspectors on the witness stand to show an inspection. The persons said
to be employed to inspect were not experienced or competent, so far as the evidence shows.
The testimony offered, but refused by the court, to show the sanitary condition of the bottling plant,
was properly refused, because the sanitary condition might have be en all right and yet the me thod of
bottling improper or defective to the e xtent of permitting foreign substances to get into the bottles of
Coca–Cola before they were sealed and sent out for the use of the public.
We are not prepared to say that, if the Coca–Cola company had shown that the me thod of bottling was
perfect, and that it was impossible for the foreign substance to get into the bottle while it was being
filled and sealed, then the question of fact for the de cision of the jury—whether the foreign substance
got into the bottle after it left the factory—would not thus be raised; but, as we have said, the point
is not presented by the record, because a perfect method of bottling was not there shown, for the
reason mentioned. [***]
Counsel for appellant contend that the verdict of $2,500 is excessive. We have reviewed the testimony
on this phase of the case, and while the testimony of the plaintiff may have the marks of exaggeration
or honest but unnecessary fear in it, yet it was positive, and the jury had the right to believe it. And if
what the plaintiff testified to with regard to the e xtent of her injuries and suffering for nearly a year on
account of the glass being in her stomach is true, we do not think $2,500 is an e xcessive amount to be
allowed for the injury. It is true that probably she ought to have offered more e xpert medical testimony
as to the e xtent of her injuries than she did; however, there are some injuries and internal troubles
that the injured party is fully competent to testify about. In fact, the injured person here knows more
about the pain she suffered from the character of injury involved than the attending physician could
possibly know. The doctor, in such a case, generally knows only what the patient tells him, and he
testifies as to the condition of the patient from what she has told him, and possibly some other slight
corroborative symptoms.
The jury thought that $2,500 was a reasonable amount for the injuries received in this case and we se e
no good reason for disturbing the verdict.
The judgment of the lower court is affirmed.
Note 1. Formalist vs. Functionalist Legal Reasoning. The court announces that it is grounding the
case in a the ory of breach of implied warranty rather than negligence. It states that implied warranty
will require three elements: 1) the glass must have be en in the bottle when it left the factory and
was offered to the public; 2) the consumer must have had title and rightful possession of the bottle;
and 3) the consumer must have suffered injury from drinking the soda which contained glass. Unlike
negligence, the claim for implied warranty does not require fault by the defendant. In that sense, it
resembles strict liability. The court attempts to limit the scope of the tort action by insisting on a tight
causal nexus (ensuing that the glass was in the bottle when it left the factory suggests nobody else
could have be en responsible); it then also points to the requirement of “title or rightful possession.”
This provision seeks to limit the possible scope of liability by insisting on privity or a “contractual
relation between the injured party” and either the manufacturer or the retailer. However, the court
treats the privity requirement here as a formal technicality. It considers two means of surmounting
Implied Warranty | 555

the factual challenge present on these facts, namely that the injured party did not buy the bottle
herself.
What are the two theories it considers, which does it settle on and why? In its reasoning, it can be
seen as disregarding a formalist theory that would insist on technically mapping the facts onto privity,
even if the theory strained the concepts to do so. Instead, it opts for a functionalist theory that seeks
to make the injured party whole and be tter captures the behavior and intentions of the party as well
as aligning better with the purposes of the law.
Answer: First, it suggests that the parties could be se en as donor and recipient of a gift of the bottle.
This is a functionalist approach in the se nse that the buyer meant simply to buy her friend a bottle
of soda (and treating the soda as a gift also permits legal recovery here). Second, it considers a more
strained theory that the parties were “joint owners” of the bottle; this can be se en as formalism
since nobody would truly think of the two women as joint owners of the bottle unless pressed into
requiring that reading so as to prevent an innocent injured party from remaining uncompensated for
her injuries. For example, if Mrs. Lyons had drank half the bottle, her friend would not have asked
her to stop and respect that she was entitled to the se cond half. If Mrs. Lyons had immediately
spilled the entire bottle, it would not have made se nse that she would owe her friend the portion
of the spille d contents that were owned by the friend. Yet those would be some of the likely effects
of construing them as joint owners. Understanding when courts shift into functionalist or formalist
modes of analysis is a useful way to see when they are treating the law as a barrier or getting creative
about refusing to apply it in ways that produce unfair or absurd results. It is also good practice for
Constitutional Law, where you will focus much more on the kinds of arguments made by the judiciary.
Note 2. What was the defendant alleging had been erroneous about the way the jury was instructed?
The court rejected this argument and agreed that it was proper to exclude the e vidence defendant
proffered to show the

sanitary condition of the

bottling plant. Can you summarize

the

court’s

reasoning? What did it leave room for in future cases?
Answer: “The e vil claimed to exist in this instruction is that it told the jury they should find for the
plaintiff if the defendant manufactured and placed on the market the bottle of beverage in question,
regardless of whether the glass got into the bottle after it left the factory, or regardless of whether the
method of bottling employed by the manufacturer was such that the glass could not have gotten into
the bottle until after it left the manufacturer.”
The court found no error because the e vidence showed that the bottle had left the manufacturer
sealed and the glass must therefore have be en in the bottle before it left the defendant’s factory.
Evidence of the cle anliness wasn’t relevant because if there was some defect in the bottling process,
all the cle anliness in the world wouldn’t help keep glass out of bottles. It left room in future cases for
evidence of a flaw-free manufacturing process to be admitted to demonstrate that glass could not
have be en introduced into the bottle before it left the factory. However, this evidence was not present
here.
Note 3. Many early products liability cases were oriented in theories drawn from contract law, such
as theories of warranty (express or implied) or from the law of sales. Based on what you have le arned
556 | Implied Warranty

about express waivers of liability (in Module 4, in connection with Assumptions of the Risk), what do
you imagine might be the costs, benefits, and limits of an approach to consumer protection that is
grounded in contracts, versus torts? What theories does the court entertain in Coca-Cola Bottling
Works to circumvent the formal bar to recovery that would be impose d if the lack of privity here were
dispositive?
Note 4. The court’s discussion of damages reveals the se nse of uncertainty that often attached to
damages awards based on medical evidence or testimony. Because there were fewer available and
fewer sophisticated methods of tracking and verifying patient’s symptoms, courts often had to make
determinations based on witness credibility (and, as in cases like this, the vie w that the doctor could
verify, at least, that the plaintiff had been complaining of the se symptoms during the time pe riod she
claimed before the court). These evidentiary difficulties, and the accompanying judicial suspicions,
may help you understand the limits on allowing recovery for emotional distress, as well as their partial
erosion over time as medical and psychiatric science advanced.
Note 5. The court refers to a case (Chapman) in which a mouse was discovered in a soda bottle. A
famous case in the United Kingdom, Donoghue v. Stevenson, featured digestive injuries and shock
when a Scottish woman discovered a decomposing snail in her ginger beer after she had consumed
most of the contents of the bottle. She brought a now-infamous lawsuit after suffering from the
physical and emotional stress of the e xperience. The litigation was ultimately successful for the
plaintiff and reshaped the British law of consumer protection by allowing a consumer to recover for
injuries suffered due to a defective product even when it was not inherently dangerous and even
when her friend had purchased it (which would ordinarily cause the plaintiff to fail to meet the privity
requirement). While she triumphe d in court, Ms. Donoghue endured public critique and character
assassination for bringing the lawsuit (and it was even suggested that her “friend” was an extramarital
lover). Many accounts tell the story of the lawsuit and provide details that help frame the issue:
Donoghue spie d the de composing gastropod, mixed with bits of ice cream, bobbing in a glass
of ginger beer…. The sight of it would continue to haunt the Scottish woman for years to come.
…Three days after finding bits of dead mollusk in her drink, Donoghue visited a doctor for
sharp pains shooting in her stomach. Three weeks later, she was hospitalized at the Glasgow
Royal Infirmary with severe gastroenteritis and shock. Donoghue’s next steps — seeking out
a lawyer and filing a claim against both Minghella and David Stevenson, the owner of the
company that made the ginger beer — were not e xactly typical for people of her background.
Lawyers were for wealthy people. Donoghue, the daughter of a steelworker, was the se cond
youngest of six and worked as a shop assistant. [S]he found the snail on August 26, 1928 —
long before high-profile personal-injury lawsuits against companies like McDonald’s and Ford
were the norm rather than the exception. Personal-injury laws only applied to the person who
had purchased the defective product, and it was Donoghue’s friend, not her, who had paid
for the ginger beer. The only exceptions were if the product was inherently dangerous or if
the producer had misled the customer into thinking it was safe while knowing that it wasn’t.
In either case, the ginger beer did not qualify. [A] solicitor, Walter Leechman, … agreed to
represent Donoghue pro bono. After nearly a year of preparing documents and going through
legal books, Leechman and Donoghue filed a lawsuit asking for £500 in damages and £50 in
Implied Warranty | 557

court fees. The sum, worth approximately £35,000 ($45,000) in today’s money, was considered
extravagantly large. As with many personal-injury cases today, the matter became about much
more than the incident itself — and it came at great personal cost to Donoghue.
If you’re curious to read (or listen to) more, you’ll find it here https://narratively.com/the-womanwho-found-a-snail-in-her-soda-and-launched-a-million-lawsuits/
Note 6. Should it matter what is found in the cola bottle so long as it isn’t Coke? Should worse things
give rise to higher damages? Or lower requirements of proof of negligence? Should it be material
if the item is particularly objectionable, such as an “unpackaged prophylactic”? Wallace v. Coca-Cola
Bottling Plants, Inc., 269 A.2d 117, 121–22 (Me. 1970), overruled on other grounds by Culbert v. Sampson’s
Supermarkets Inc., 444 A.2d 433 (Me. 1982) (upholding a jury verdict for plaintiff when “defendant
negligently caused or permitted a foreign object to enter a bottle of Coca-Cola it had processed. The
foreign object was of such a loathsome nature it was reasonably foreseeable its presence would cause
nausea and mental distress upon being discovered in the place it was by a consumer who was in the
process of drinking from the bottle. The mental distress was manifested by vomiting.”)
The ne xt case be came the foundational case in the United States for the ide a that privity would no
longer be necessary for recovery under tort law, at least in cases where injury was caused by an
inherently dangerous product.

The Collapse of Privity
MacPherson v. Buick Motor Co. Court of Appeals of New York (1916)
(217 N.Y. 382) Justice Cardozo
The defendant is a manufacturer of automobiles. It sold an automobile to a retail dealer. The retail
dealer resold to the plaintiff. While the plaintiff was in the car it suddenly collapsed. He was thrown
out and injured. One of the whe els was made of defective wood, and its spokes crumbled into
fragments. The whe el was not made by the defendant; it was bought from another manufacturer.
There is e vidence, however, that its defects could have be en discovered by reasonable inspe ction, and
that inspection was omitted. There is no claim that the defendant knew of the defect and willfully
concealed it. [***]The charge is one, not of fraud, but of negligence. The question to be determined is
whether the defendant owed a duty of care and vigilance to anyone but the immediate purchaser.
[The court here reviews earlier cases that diverge. Some cases had held that the manufacturer owed
a duty to ultimate purchasers when the product was “inherently dangerous.” Other cases narrowed
this rule so that the inherently dangerous classification would be limited to guns, poisons or other
products intended or likely to injure or destroy. A third set proposed a rule that imposed liability for
products that became injurious when negligently made; Cardozo followed this third line.]

558 | Implied Warranty

If the nature of a thing is such that it is reasonably certain to place life and limb in peril when
negligently made, it is then a thing of danger. Its nature gives warning of the consequences to
be e xpected. If to the element of danger there is adde d knowledge that the thing will be use d by
persons other than the purchaser, and used without new tests, then, irrespective of contract, the
manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we are
required to go for the decision of this case.
There

must be

knowledge

of a danger, not merely possible, but probable. It is possible

to use

almost anything in a way that will make it dangerous if defective. That is not enough to charge
the manufacturer with a duty independent of his contract. Whether a given thing is dangerous may
be some times a question for the court and sometimes a question for the jury. There must also be
knowledge that in the usual course of events the danger will be shared by others than the buyer.
Such knowledge may often be inferred from the nature of the transaction. But it is possible that even
knowledge of the danger and of the use will not always be enough. The proximity or remoteness of
the relation is a factor to be considered. We are de aling now with the liability of the manufacturer of
the finished product, who puts it on the market to be use d without inspection by his customers. If he
is negligent, where danger is to be foreseen, a liability will follow.
We have put aside the notion that the duty to safeguard life and limb, whe n the consequences of
negligence may be foreseen, grows out of contract and nothing else. We have put the source of the
obligation where it ought to be. We have put its source in the law. [***]
In this view of the defendant’s liability there is nothing inconsistent with the the ory of liability on
which the case was tried. It is true that the court told the jury that “an automobile is not an inherently
dangerous vehicle.” The me aning, however, is that danger is not to be expected when the vehicle is
well constructed. The court left it to the jury to say whether the defendant ought to have foreseen
that the car, if negligently constructed, would become “imminently dangerous.” Subtle distinctions are
drawn by the defendant between things inherently dangerous and things imminently dangerous, but
the case does not turn upon these verbal niceties. If danger was to be e xpected as reasonably certain,
there was a duty of vigilance, and this whether you call the danger inherent or imminent. In varying
forms that thought was put before the jury. We do not say that the court would not have be en justified
in ruling as a matter of law that the car was a dangerous thing. If there was any error, it was none of
which the defendant can complain.
We think the de fendant was not absolved from a duty of inspection because it bought the whe els
from a reputable manufacturer. It was not merely a dealer in automobiles. It was responsible for the
finished product. It was not at liberty to put the finished product without subjecting the component
parts to ordinary and simple tests [c]. Under the charge of the trial judge nothing more was required of
it. The obligation to inspect must vary with the nature of the thing to be inspe cted. The more probable
the danger the greater the need of caution. [***]
The judgment should be affirmed with costs.
Note 1. Privity. Identify the rationales for the original doctrine. How and why does Cardozo choose to

Implied Warranty | 559

limit privity? How does his opinion seem to serve the various purposes of tort law? Does it strike you
as being at odds with his ruling in Palsgraf?
Note 2. Contrary views. A vigorous dissent in MacPherson by Justice Bartlett began by reciting the
traditional rule of privity: “[A] contractor, manufacturer, vendor or furnisher of an article is not
liable to third parties who have no contractual relations with him for negligence in the construction,
manufacture or sale of such article.’ (2 Cooley on Torts [3d ed.], 1486.) MacPherson v. Buick Motor Co.,
217 N.Y. 382, 397, 111 N.E. 1050 (1916). He note d the e xceptions to the rule, which in his opinion, failed to
apply here: “The e xceptions to this general rule which have thus far be en recognized in New York are
cases in which the article sold was of such a character that danger to life or limb was involved in the
ordinary use thereof; in other words, where the article sold was inherently dangerous. As has already
been pointed out, the le arned trial judge instructed the jury that an automobile is not an inherently
dangerous vehicle.” Id. He forcefully rejected the ide a that privity could be dispensed with here, short
of overruling venerable precedents from England as well as New York.
“I do not see how we can uphold the judgment in the *400 present case without overruling
what has been so often said by this court and other courts of like authority in reference to the
absence of any liability for negligence on the part of the original vendor of an ordinary carriage
to any one e xcept his immediate vendee. The absence of such liability was the very point
actually decided in the English case of Winterbottom v. Wright, and the illustration quoted
from the opinion of Chief Judge RUGGLES in Thomas v. Winchester assumes that the law on
the subje ct was so plain that the statement would be accepted almost as a matter of course. In
the case at bar the defective whe el on an automobile moving only eight miles an hour was not
any more dangerous to the occupants of the car than a similarly defective whe el would be to
the occupants of a carriage drawn by a horse at the same spe ed; and yet unless the courts have
been all wrong on this question up to the present time there would be no liability to strangers
to the original sale in the case of the horse-drawn carriage.” Id. at 399–400.
Justice

Bartlett’s concerns can be

captured concisely in his citation to an early English case,

Winterbottom v. Wright, quoting from Lord Abinger: “Unless we

confine

the

ope ration of such

contracts as this to the parties who enter into them, the most absurd and outrageous consequences,
to which I can see no limit, would ensue.” Id. at 396-397.
Are these concerns overblown? Why or why not?
Note 3. Scope. Can you tell from this opinion how far the court wishes to extend the possible field of
liability for products bearing extra risks or defects, that the customer will not have an opportunity to
inspect?
Note 4. The Pace and Nature of Common Law Change. MacPherson is often cast as the case that
toppled the “citadel” of privity, or the longstanding limitations it represented. See William L. Prosser,
The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791, 799 (1966). Yet the
holding of the case was often limited in ways that continued, effectively, to serve as barriers to
recover. Consider again, Redmond v. Borden’s Farm Products Co. (245 N.Y. 512, 1927), mentioned as a
note case supra under “Federal Regulation and the Slow Changes in State Tort Law”). Redmond held
560 | Implied Warranty

that a fourteen-month-old infant who lacked privity with a dairy farm could not recover for injuries
sustained while she was drinking milk out of a glass bottle purchased by her parent). If MacPherson
truly “toppled” the citadel of privity, how could a case de cided almost a decade later still find that
privity barred recovery for innocent injury? Is an automobile sufficiently different from a bottle of
milk? Was there a difference in the manufacturers’ duties to inspect? Is there some othe r way to
distinguish or reconcile the cases?
In fact, privity released its grip on the common law over decades rather than overnight. Even in
New York, which was bound by MacPherson’s decision, and even as late as 1961, the Court of Appeals
wrestled with how to resolve a case of injury in which the victim lacked formal privity with the
defendant. In Greenberg v. Lorenz, a fifteen year-old, Sheila, was injured by a sharp metal object in a
can of salmon purchased by her father. While the court did permit the plaintiff to recover despite the
lack of privity, the court seemed to feel obliged to defend its reasoning.
“In our view, the father’s purchase of the can of salmon to be e aten not by himself alone, but
by the members of his household, including the plaintiff Sheila as well, was clearly one made
by him for the entire household. [***] *885 It is not without interest in this case, though we
need not test our decision on the incident, that the salmon was bought at Sheila’s own request,
because she preferred it to tuna fish which her mother had originally intended to serve at the
evening meal. Greenberg v. Lorenz, 12 Misc. 2d 883, 885 (App. Term 1958), aff’d as modified, 7
A.D.2d 968, (1959), aff’d and modified, 9 N.Y.2d 195 (1961).
In the passage above, the court pointed out the father’s intent to provide for the whole house hold
as well as Sheila’s request for this particular food, as though suggesting that her intent ought to be
relevant in considering privity. It offered these factors to supplement an argument that the lack of
privity should not be determinative on these facts.
It also turned to policy considerations. Food manufacturers necessarily contemplate

a se t of

consumers broader than the purchasers, especially when advertising to parents who buy and prepare
food for children:
“In the case of highly advertised ‘baby foods,’ for instance, what can be fairly and reasonably
urged to deny a tender infant recovery because it cannot claim that an umbilical cord of
privity attaches it to a monolithic ‘chain store?’ TV, radio, billboard, magazine and ne wspaper
advertising zoom forth strident ballyhoo and urgent ‘invitations to deal,’ addressed to fathers
and mothers, to be sure but actually intended for the spe cial benefit of their infants—for whom
the foods have be en primarily processed. As between weakening of privity in these food cases
and diminishing consumer protection, common sense, as well as good conscience, permit no
choice. ‘It is a melancholy state of affairs to witness courts more preoccupied with privity than
consumer protection.’” Id.
The court states its values plainly in prioritizing protection over privity but it does not do so lightly.
It bolsters its arguments by noting the “constantly mounting criticism leveled at the requirement of

Implied Warranty | 561

strict contractual privity in this type of case” and concludes that privity can longer be understood to
“confin[e] the right of recovery to the very individual who made the purchase.” Id. at 886.
In the

light of today’s conditions it is fair to say that the

rule

is all but an

anachronism—weighed on the scales of reality, it is found wanting. And, indeed it has been
rejected outright in some jurisdictions, and denigrated in others in ‘domestic meals’ cases. This
process has been supported on different bases: ‘household agency’, ‘agency for the consumer’,
or ‘third party beneficiary’. The activating dynamic, however, has been constant, although
variously called: ‘public policy’, ‘breach of duty’, ‘privity imposed by operation of law’, and simply
‘social justice’. Id.
Finally, it is noteworthy that the court could not identify precisely the the ory underlying the right of
recovery in the absence of privity, but articulated strong views in favor of it nonetheless:
If it is not altogether clear whether it is on the the ory of implied agency or third party
beneficiary doctrine, or because it is a ‘wrongful act, neglect, or default’ (Greco v. S. S. Kresge
Co., 277 N.Y. 26, 12 N.E.2d 557, 560, 115 A.L.R. 1020), it is manifest, nevertheless, that in these
cases of the breach of an implied warranty of fitness for use in connection with the sale of
foodstuffs, the traditional concept of privity no longer constrains the courts to an absurd as
well as unconscionable result. Id. at 887.
Given what you understand about the common law, how would you explain the retention of privity
after MacPherson, even in cases like Redmond (almost a decade later) and Greenberg (45 years later)?
What valuable role did privity, or its retention, serve? Why did the court not find it applied here?
Which parts of the opinion are descriptive, and which parts are normative?
Note 5. Torts versus Contracts. What are the implications for the (famous) dicta below, from the
perspectives of consumers and the various stakeholders affected by tort law?
“We have put aside the notion that the duty to safeguard life and limb, whe n the consequences
of negligence may be foreseen, grows out of contract and nothing else. We have put the source
of the obligation where it ought to be. We have put its source in the law.”
Why does it matter whether contract or tort law provides the basis for recovery? What is the
difference be tween a warranty and a contract? Does MacPherson feel like a natural extension of
Mazetti? In what ways do these two cases diverge (descriptively) and to what extent (normatively),
should they diverge or adopt parallel reasoning?
The next case explores express warranties and representations made to the buyer of a car.

562 | Implied Warranty

27. Express Warranty
Baxter v. Ford Motor Co., Supreme Court of Washington (1932)
(168 Wash. 456)
During the month of May, 1930, plaintiff purchased a model A Ford town sedan from defendant St.
John Motors, a Ford dealer, who had acquired the automobile in question by purchase from defendant
Ford Motor Company. Plaintiff claims that representations were made to him by both defendants that
the windshield of the automobile was made of nonshatterable glass which would not break, fly, or
shatter. October 12, 1930, while plaintiff was driving the automobile through Snoqualmie pass, a pebble
from a passing car struck the windshield of the car in question, causing small pieces of glass to fly
into plaintiff’s left eye, resulting in the loss thereof. Plaintiff brought this action for damages for the
loss of his left eye and for injuries to the sight of his right eye. The case came on for trial, and, at the
conclusion of plaintiff’s testimony, the court took the case from the jury and entered judgment for
both defendants. From that judgment, plaintiff appeals. [***]
The principal question in this case is whe ther the trial court erred in refusing to admit in evidence,
as against respondent Ford Motor Company, the catalogues and printed matter furnished by that
respondent to respondent St. John Motors to be distributed for sales assistance. Contained in such
printed matter were statements which appellant maintains constituted representations or warranties
with reference to the nature of the glass used in the windshield of the car purchased by appellant. A
typical statement, as it appears in appellant’s exhibit for identification No. 1, is here set forth:
“Triplex Shatter-Proof Glass Windshield. All of the ne w Ford cars have a Triplex shatter-proof
glass windshield—so made that it will not fly or shatter under the hardest impact. This is an
important safety factor because it eliminates the dangers of flying glass—the cause of most
of the injuries in automobile accidents. In these days of crowded, heavy traffic, the use of
this Triplex glass is an absolute ne cessity. Its extra margin of safety is something that every
motorist should look for in the purchase of a car—especially where there are women and
children.”
Respondent Ford Motor Company contends that there can be no implie d or express warranty without
privity of contract, and warranties as to personal property do not attach themselves to, and run with,
the article sold.
[The court here referred at length to Mazetti v. Armour & Co., 75 Wash. 622 (1913)]
In the case at bar the automobile was represented by the manufacturer as having a windshield of
nonshatterable glass “so made that it will not fly or shatter under the hardest impact.” An ordinary
person would be unable to discover by the usual and customary examination of the automobile
whether glass which would not fly or shatter was used in the windshield. In that respect the purchaser
was in a position similar to that of the consumer of a wrongly labeled drug, who has bought the same
Express Warranty | 563

from a retailer, and who has relied upon the manufacturer’s representation that the label correctly set
forth the contents of the container. For many years it has been held that, under such circumstances,
the manufacture r is liable to the consumer, even though the consumer purchased from a third person
the commodity causing the damage. Thomas v. Winchester, 6 N.Y. 397. The rule in such cases does
not rest upon contractual obligations, but rathe r on the principle that the original act of delivering an
article is wrong, when, because of the lack of those qualities which the manufacturer represented it
as having, the absence of which could not be readily detected by the consumer, the article is not safe
for the purposes for which the consumer would ordinarily use it.
The vital principle present in the case of Mazetti v. Armour & Co., supra, confronts us in the case
at bar. In the case cited the court recognized the right of a purchaser to a remedy against the
manufacturer because

of damages suffered by reason of a failure

of goods to comply with the

manufacturer’s representations as to the e xistence of qualities which they did not in fact possess,
when the absence of such qualities was not readily discoverable, even though there was no privity of
contract between the purchaser and the manufacturer.
Since the rule of caveat emptor was first formulated, vast changes have taken place in the e conomic
structure
s of the

English speaking peoples. Methods of doing business have undergone

transition. Radio, billboards, and the

products of the

printing press have

be come

the

a great
me ans of

creating a large part of the demand that causes goods to depart from factories to the ultimate
consumer. It would be unjust to recognize a rule that would permit manufacturers of goods to create
a demand for their products by representing that they possess qualities which they, in fact, do not
possess, and then, because there is no privity of contract existing between the consumer and the
manufacturer, deny the consumer the right to recover if damages result from the absence of those
qualities, when such absence is not readily noticeable. “An exce ption to a rule will be de clared by
courts when the case is not an isolated instance, but general in its character, and the e xisting rule
does not square with justice. Under such circumstances a court will, if free from the restraint of some
statute, declare a rule that will meet the full intendment of the law.” Mazetti v. Armour & Co., supra.
We hold that the catalogues and printed matter furnished by respondent [***] Ford Motor Company
for distribution and assistance in sales were improperly excluded from evidence, because the y set
forth representations by the manufacturer that the windshield of the car which appellant bought
contained Triplex nonshatterable glass which would not fly or shatter. The nature of nonshatterable
glass is such that the falsity of the representations with reference to the glass would not be readily
detected by a person of ordinary e
xperience

and reasonable prudence. Appellant, under the

circumstances shown in this case, had the right to rely upon the representations made by respondent
Ford Motor Company relative to qualities possessed by its products, even though there was no privity
of contract between appellant and respondent Ford Motor Company. [***]
The trial court erred in taking the case from the jury and entering judgment for respondent Ford
Motor Company. It was for the jury to determine under proper instructions, whether the failure of
respondent Ford Motor Company to equip the windshield with glass which did not fly or shatter was
the proximate cause of appellant’s injury. [***]

564 | Express Warranty

Reversed, with directions to grant a new trial with reference to respondent Ford Motor Company;
affirmed as to respondent St. John Motors.
Note 1. What if the defendant in Baxter could not find safer glass to use, because none e xisted? What
if they had used their very best efforts to find better glass, and genuinely and accurately believed that
the glass they used was the safest available?
Note 2. Ford tried to argue that any warranties “run with the article sold.” What would that mean, in
practical terms? Would it contravene the rule in MacPherson?
Note 3. The consumer in Baxter claims to have relied on the representations made in the e xpress
warranty. Does this seem like a mere pretext to recover from an ordinary car accident? Or does it
seem sound to hold the defendant to claims made in their brochure? Should the plaintiff have to prove
reasonable reliance on the brochure, namely, that they reasonably relied on it in deciding to purchase
the car (and perhaps would not otherwise have purchased it)? What does it do to the duties of those in
the position to make such claims if reasonable or justifiable reliance by the consumer is a requirement
for recovery under tort law? Does it sound in contract or tort law, in your estimation? Finally, does the
conduct by the defendant here seem to generate liability on the basis of negligence or strict liability?
Note 4. Why does the court believe that it was error to exclude the catalogues and printed advertising
of Ford Motor Company in the prior litigation? On what grounds do you think the lower court likely
excluded it in the first place?

Coca-Cola Bottling Co. of Helena v. Mattice, Supreme Court of Arkansas
(1951)
(219 Ark. 428)
Appellee, Dr. H. W. Mattice, recovered a verdict and judgment for $12,500 against appellant, Coca-Cola
Bottling Co. of *429 Helena, Arkansas for injuries sustained from the alleged explosion of a bottle of
Coca-Cola manufactured by appellant at its bottling plant in Forrest City, Arkansas.
[***] Appellee resides at Marianna, Arkansas where he has e ngaged in the practice of dentistry since
1922. About 10 a. m. on the day of his injury in September, 1947 appellee’s wife purchased from a
Marianna grocer a case of Coca-Colas which had been delivered to the grocery store by a truck from
appellant’s plant at Forrest City. The case of drinks was removed from a stack in the store where it had
been placed by appellant’s truck driver and carefully placed in the car driven by appellee’s wife and
transported to the Mattice home. Mrs. Mattice carefully placed the case behind a shrub where such
drinks were usually kept.
After lunch at the Mattice home, appellee, his daughter, Clyde Mattice, and office assistant, Sybil Rice,
started to return to appellee’s office in his car about 1 p.m., when appellee indicated that he would
like to take some Coca-Colas to the office. Either Mrs. Mattice or Miss Rice took five or six bottles
of Coca-Cola from the case and placed them on the floor of the rear compartment of the two-door
Express Warranty | 565

sedan on the right side with the bottles lying flat on the floor and the crowns facing the rear seat.
Clyde Mattice entered the front seat and appellee the rear seat of the car. Appellee was seated slightly
to the left side on the rear seat of the car and was reaching over the bottles of Coca-Cola to open
the right hand car door for Miss Rice to enter, when one of the bottles exploded. Appellee’s hand was
about twenty-four inches above the bottles and the flying glass severed the radial nerve of his right
wrist and cut his index finger. Since there is no contention that the verdict is excessive, we refrain
from further detail of the serious and disabling nature of the injury. Appellee and his daughter were
positive in their statements that he did not touch the bottles with his feet *430 and that said bottles
were not otherwise agitated after they were placed on the floor of the car.
At the conclusion of the testimony on behalf of appellee, appellant moved for an instructed verdict
on the ground that appellee had faile d to establish the material allegations of the complaint and
particularly the allegation that appellant was negligent in putting too high a carbonation in and
otherwise negligently charging, filling, and capping the bottle which allegedly caused the injury. The
motion was overruled on the ground that a prima facie case had be en made under the doctrine of res
ipsa loquitur, which the court held applicable.
Appellant then offered general but detailed proof of its bottling operation at its Forrest City plant
about the time of the injury showing the various precautionary steps in the bottling process designed
to prevent overcharging with carbonation or the use of defective bottles. Although daily written
reports were made showing the hourly bottle pressure, bottle temperature and gas volume employed
in the bottling process in September, 1947, such records were not preserved or introduced in evidence.
Scientific proof was also introduced to show that Coca-Cola bottles generally could withstand
pressures several times greater than appellant’s equipment, when properly used, could put in them
and that during the bottling process the bottles were subje cted to such pressure as to eliminate weak
or defective bottles. There was also general proof to the effect that the bottled product was handled
carefully in making deliveries to retail stores but no specific proof as to the manne r in which the case
in question was handled.
Appellant’s first contention for reversal is that the trial court erred in holding the doctrine of res ipsa
loquitur applicable. We he ld the doctrine applicable to e xploding bottled beverages in the recent case
of Coca-Cola Bottling Co. of Fort Smith v. Hicks, 215 Ark. 803, but it is insisted that this is the minority
rule and that appellee’s proof is insufficient to invoke *431 the rule announced in that case. We there
held that the fact that the instrumentality causing an injury may have actually passed out of the
physical possession of the defendant does not foreclose application of the res ipsa loquitur doctrine,
‘when a plaintiff shows that an exploding bottle was handled with due care after it left the control of
the defendant, and that the bottle had not be en subject to extraneous harmful forces during that time’.
It is undisputed that the case of Coca-Colas which contained the bottle which later exploded was
delivered to T. K. Fong’s Grocery by appellant. Appellee offered testimony tending to show that the
case of Coca-Colas remained undisturbed in the store where it was stacked by appellant’s driver until
it was carefully placed in appellee’s car and transported to his home and deposited in the shrubbery
near the house where it remained unmolested for about two hours when six of the bottles were
removed and placed on the car floor without any undue handling of the bottles. There was further

566 | Express Warranty

evidence that the six bottles were in no manner disturbed from the time the y were placed on the floor
until the bottle exploded.
In instructions requested by both parties the jury was required to find, and the burden was placed on
appellee to show, that the e xplosion was not caused by any act of appellee or third persons who may
have handle d the bottle and that no other independent cause intervened to bring about the e xplosion
from the time the bottle left the control of appellant. When the evidence is considered in the light
most favorable to appellee, we deem it sufficient to satisfy the burden thus placed upon him.
It is next argued that e
ven if the res ipsa doctrine

is applicable , the

prima facie

case

made

by

appellee, or the presumption of negligence arising from proof of the circumstances of the injury, was
completely dispelled when appellant ‘offered’ proof of its due care ‘at or about’ the time the bottle of
Coca-Cola in question was manufactured and sold. [***] If the prima facie case made by plaintiff in
a case where the doctrine of res ipsa loquitur is applicable may be completely dissipated by merely
offering some proof of due care on defendant’s part, the n the whole doctrine is dangerously weakened
if not completely devitalized. If the trier of facts is bound to accept such offered proof regardless of its
questionable or perjured character, the jury’s time-honored province of determining the credibility of
witnesses and the weight to be given testimony is not only invaded but utterly subdued.
We ne xt consider the assignments of error relating to the giving of Plaintiff’s Requested Instructions
Nos. 2 and 3, which read:
‘No. 2. If you find from a preponderance of the testimony that the bottle of Coca Cola exploded
and proximately caused the injury complained of, was manufactured, sold and distributed by
the defendant herein and that it actually exploded and caused the injury; and you further
find from a preponderance of the e vidence that there was no negligence on the part of the
plaintiff H. W. Mattice and that no independent cause intervened betwee n the time the bottle
left the e xclusive possession of the defendant and the time of the e xplosion, that would cause
the e xplosion, you are then instructed that the fact of the e xplosion of the said bottle raises
a presumption of negligence on the part of the defendant and your verdict will be for the
plaintiff, unless you should find that the presumption of negligence has be en overcome by
evidence on the part of the defendant.
*435 ‘Upon proof of the fact of the e xplosion, as set out in the above instruction, the burden
of proof then shifts to the defendant to show by a preponderance of the e vidence that it was
free from negligence and upon failure of the defendant to meet that burden of proof you will
be warranted in finding for the plaintiff.’
‘No. 3. You are instructed that where the e xplosion is caused by a bottle of Coca-Cola that is
under the control and custody of the defendant, or that after it left the control and custody
of the defendant it is shown by a preponderance of the e vidence that the bottle has not be en
subjected to extraneous harmful forces during that time, and that the e xplosion and injury is
such that in the ordinary course of things would not occur, if those who have such control and
custody use proper care, the happening of the e xplosion with the resulting damage is prima

Express Warranty | 567

facie e vidence of negligence, and shifts to the defendant the burden of proving that it was not
caused by the negligence of the defendant.’
Each of the instructions was specifically objected to because it placed the burden of proof in the
whole case on appellant to show that it was not guilty of negligence whe n the burden is actually
upon appellee to prove negligence and be cause the instructions set up two different burdens for
appellant and were contradictory within themselves and with other instructions given. In disposing of
this contention, we e xamine briefly the de velopment of the res ipsa doctrine. It was announced by the
English courts apparently as a court-made rule of substantive law. The English decisions hold that the
presumption of negligence arising unde r the doctrine is a legal presumption which shifts the burden
of proof to defendant to prove himself free from negligence by a preponderance of the e vidence. The
English cases were followed by early decisions in this country. Typical of these is our own case of
Railway Co. v. Hopkins, 54 Ark. 209, where an instruction was approved which definitely recognized
the burden shifting rule. [***]
In later American cases much confusion and division of authority have de veloped concerning the
effect of the doctrine on the burden of proof, as is demonstrated by the following statement in 65
C.J.S., Negligence, § 220(9) b: ‘The general rule, as broadly stated in the cases, is that, where plaintiff
has established a presumptive or prima facie case of negligence by virtue of the doctrine of res ipsa
loquitur, it is then incumbent on defendant, if he wishes to avoid the effect of the doctrine or the risk
of the inference or presumption which may arise, to introduce e vidence to e xplain, rebut, or otherwise
overcome the presumption or inference that the injury complained of was due to negligence on his
part.
[c] [T]he general rule that the burden of proving negligence on the part of defendant rests throughout
the trial on plaintiff is generally held not affected by the doctrine of res ipsa loquitur, and the
burden is still on plaintiff to establish the negligence of defendant, and, on the whole e vidence, he
must have the preponderance in order to succeed, although where defendant *437 fails to overcome
the presumption or inference raised by the doctrine this burden is sustained. The application of
the doctrine of res ipsa loquitur does not convert defendant’s plea of the general issue or general
denial into an affirmative defense with respect to the burden of proof.’ The confusion becomes more
confounded when the list of cases cited in support of the above statement shows several states
following both views.
While our e arlier cases clearly recognized the rule as adopte d by the English courts, later cases have
adopted the so-called general rule as above stated and hold that the true burden of proof in the sense
of the risk of nonpersuasion does not shift but that the burden of producing or going forward with the
evidence does shift.
In Arkansas Light and Power Co. v. Jackson, supra, [c], the following instruction was challenged:
‘You are instructed that, where injury or death is caused by a thing or instrumentality that is
under the control or management of the defendant, and the injury or death is such that in the
ordinary course of things would not occur, if those who have such control or management use
proper care, the happening of the injury is prima facie evidence of negligence, and shifts to the
568 | Express Warranty

defendant the burden of proving that it was not caused through lack of care on defendant’s
part.’ In approving this instruction the court said: ‘This instruction does not tell the jury there
was a presumption of negligence from the mere occurrence of the injury, nor did it relieve the
plaintiff from the burden of proving negligence. The burden of proof to establish negligence
was on the plaintiff, and the instruction did not shift this burden. …
‘The doctrine of res ipsa loquitur does not relieve the plaintiff of the burden of proving
negligence; it merely declares the conditions under which a prima facie showing of negligence
has been made, and, where this has be en done, the defendant having the custody and control
of the agency causing the injury and the opportunity to make the e xamination to discover the
cause, must furnish the explanation which this opportunity affords to overcome the prima
facie showing made by the plaintiff. Such is the purport of the instruction as we understand it,
and no error was committed *438 in giving it under the facts of this case.’ [***]
[W]e find no error in the giving of Plaintiff’s Requested Instruction No. 3 or the first paragraph of
Instruction No. 2. But the language of paragraph 2 of Plaintiff’s Requested Instruction No. 2 clearly
shifted the true burden of proof to the appellant to show by a preponderance of all the e vidence that
it was free from negligence. It conflicted with other instructions given placing the burden of proof on
appellee to establish his case by a preponderance of all the e vidence. In the annotation in 42 A.L.R. 865
numerous cases are cited from those jurisdictions which recognize the so-called general rule, holding
the giving of similar instructions prejudicial and ground for reversal. So we hold that the giving of
paragraph 2 of Requested Instruction No. 2 resulted in reversible error. [***]
For the error indicated in the giving of Appellee’s Requested Instruction No. 2, the judgment is
reversed and the cause remanded for a new trial.
Note 1. Review the three prongs of the RIL test in light of the analysis above and review our earlier
discussion of the distinctions between the burden of production (which the court here refers to as
the “burden of going forward”) and the burden of persuasion. Recall, too Rodriguez and the dueling
opinions’ view of whether the plaintiff on a summary judgment must prove that they are free from
negligence to prevail at that stage. What is the significance here, of where to place the burden? What
is at stake and why might it either differ or resemble the comparative fault context of Rodriguez?
Note 2. You have le arned that burden-shifting is a device through which legal rules can “place a thumb
on the scale” for a party, that is, can help a party on a given issue or action. It is not usually fully
dispositive, although it can be, but it typically does provide some assistance. As you encounter various
different kinds of actions in products liability law, consider whether the underlying policy concerns,
and tort law’s purposes, justify existing or additional use of burden-shifting devices in order to assist
stakeholders at different points in legal conflicts. The ne xt case features another exploding Coca-Cola
bottle (and a plaintiff whose name include s the word “cola,” for the win). The majority opinion deploys
res ipsa loquitur again, while the concurrence, penned by the venerable Justice Traynor, provides a
harbinger of the strict liability rule that will follow in a landmark case for which he writes the majority
opinion. Normatively, consider the arguments in favor of channeling plaintiffs through the standard
negligence action, versus permitting them to use strict liability to recover.

Express Warranty | 569

Escola v. Coca Cola Bottling Co. of Fresno, Supreme Court of California
(1944)
(24 Cal.2d 453) En bank [sic]
Plaintiff, a waitress in a restaurant, was injured when a bottle of Coca Cola broke in her hand. She
alleged that defendant company, which had bottled and delivered the alleged defective bottle to her
employer, was negligent in selling ‘bottles containing said beverage which on account of excessive
pressure of gas or by reason of some defect in the bottle was dangerous … and likely to explode.’ This
appeal is from a judgment upon a jury verdict in favor of plaintiff.
Defendant’s driver delivered several cases of Coca Cola to the restaurant, placing them on the floor,
one on top of the other, under and behind the counter, where the y remained at least thirty-six hours.
Immediately before the accident, plaintiff picked up the top case and se t it upon a near-by ice cream
cabinet in front of and about three feet from the refrigerator. She then proceeded to take the bottles
from the case with her right hand, one at a time, and put them into the refrigerator. Plaintiff testified
that after she had placed three bottles in the refrigerator and had moved the fourth bottle about 18
inches from the case ‘it exploded in my hand.’ The bottle broke into two jagged pieces and inflicted
a deep five-inch cut, severing blood vessels, nerves and muscles of the thumb and palm of the hand.
Plaintiff further testified that when the bottle e xploded, ‘It made a sound similar to an electric light
bulb that would have dropped. It made a loud pop.’ Plaintiff’s employer testified, ‘I was about twenty
feet from where it actually happened and I heard the e xplosion.’ A fellow employee, on the opposite
side of the counter, testified that plaintiff ‘had the bottle, I should judge, waist high, and I know that it
didn’t bang either the case or the door or anothe r bottle,’ when it popped. It sounded just like a fruit
jar would blow up…’ The witness further testified that the contents of the bottle ‘flew all over herself
and myself and the walls and one thing and another.’
The top portion of the bottle, with the cap, remained in plaintiff’s hand, and the lower portion fell to
the floor but did not break. The broken bottle was not produced at the trial, the pie ces having been
thrown away by an employee of the restaurant shortly after the accident. Plaintiff, however, described
the broken pieces, and a diagram of the bottle was made showing the location of the ‘fracture line ’
where the bottle broke in two.
*457 One of defendant’s drivers, called as a witness by plaintiff, testified that he had se en other bottles
of Coca Cola in the past e xplode and had found broken bottles in the warehouse when he took the
cases out, but that he did not know what made them blow up.
Plaintiff then rested her case, having announced to the court that being unable to show any specific
acts of negligence she relied completely on the doctrine of res ipsa loquitur. Defendant contends
that the doctrine of res ipsa loquitur does not apply in this case, and that the e vidence is insufficient
to support the judgment. Many jurisdictions have applie d the doctrine in cases involving exploding
bottles of carbonated beverages. [cc] It would serve no use ful purpose to discuss the reasoning of the
foregoing cases in detail, since the problem is whether under the facts shown in the instant case the
conditions warranting application of the doctrine have been satisfied.
570 | Express Warranty

Res ipsa loquitur does not apply unless (1) defendant had exclusive control of the thing causing the
injury and (2) the accident is of such a nature that it ordinarily *458 would not occur in the absence
of negligence by the defendant. [cc] Many authorities state that the happening of the accident does
not speak for itself where it took place some time after defendant had relinquished control of the
instrumentality causing the injury. Under the more logical view, however, the doctrine may be applie d
upon the the ory that defendant had control at the time of the alleged negligent act, although not at
the time of the accident, provided plaintiff first proves that the condition of the instrumentality had
not been changed after it left the defendant’s possession. [***] As said in Dunn v. Hoffman Beverage
Co., 126 N.J.L. 556, ‘defendant is not charged with the duty of showing affirmatively that something
happened to the bottle after it left its control or management; [***] to get to the jury the plaintiff
must show that there was due care during that period.’ (3) Plaintiff must also prove that she handle d
the bottle carefully. The reason for this prerequisite is se t forth in Prosser on Torts, supra, at page
300, where the author states: ‘Allied to the condition of exclusive control in the defendant is that of
absence of any action on the part of the plaintiff contributing to the accident. Its purpose, of course,
is to eliminate the possibility that it was the plaintiff who was responsible.
If the boiler of a locomotive e xplode s while the plaintiff engineer is operating it, the inference of
his own negligence is at least as great as that of the defendant, and res ipsa loquitur will not apply
until he has accounted for his own conduct.’ [c] It is not necessary, of course, that plaintiff eliminate
every remote possibility of injury to the bottle after defendant lost control, and the requirement is
satisfied if there is e vidence permitting a reasonable inference that it was not accessible to e xtraneous
harmful forces and that it was carefully handled by plaintiff or any third person who may have moved
or touched it. Cf. Prosser, supra, p. 300. If such evidence is presented, the question becomes one
for the trier of fact (see, e. g., *459 MacPherson v. Canada Dry Ginger Ale, Inc., 129 N.J.L. 365), and,
accordingly, the issue should be submitted to the jury under proper instructions.
In the present case no instructions were requested or given on this phase of the case, although
general instructions upon res ipsa loquitur were given. Defendant, however, has made no claim of
error with reference thereto on this appeal. Upon an examination of the record, the e vidence appe ars
sufficient to support a reasonable inference that the bottle here involved was not damaged by any
extraneous force after delivery to the restaurant by defendant. It follows, therefore, that the bottle
was in some manner defective at the time de fendant relinquished control, because sound and properly
prepared bottles of carbonated liquids do not ordinarily explode when carefully handled.
The ne xt question, then, is whether plaintiff may rely upon the doctrine of res ipsa loquitur to supply
an inference that defendant’s negligence was responsible for the defective condition of the bottle at
the time it was delivered to the restaurant. Under the general rules pertaining to the doctrine, as
set forth above, it must appear that bottles of carbonated liquid are not ordinarily defective without
negligence by the bottling company. [***]
An explosion such as took place here might have be en caused by an excessive internal pressure in a
sound bottle, by a defect in the glass of a bottle containing a safe pressure, or by a combination of
these two possible causes. The question is whether under the evidence there was a probability that
defendant was negligent in any of these respects. If so, the doctrine of res ipsa loquitur applies. The
bottle was admittedly charged with gas under pressure, and the charging of the bottle was within
Express Warranty | 571

the e xclusive control of defendant. As it is a matter of common knowledge that an overcharge would
not ordinarily result without negligence, it follows under the doctrine of res ipsa loquitur that if the
bottle was in fact excessively charged an inference of defendant’s negligence would arise. If *460 the
explosion resulted from a defective bottle containing a safe pressure, the defendant would be liable if
it negligently failed to discover such flaw. If the defect were visible, an inference of negligence would
arise from the failure of defendant to discover it.
Where defects are discoverable, it may be assume d that they will not ordinarily escape de tection
if a reasonable inspe ction is made, and if such a defect is overlooked an inference arises that a
proper inspection was not made. A difficult problem is presented where the de fect is unknown and
consequently might have be en one not discoverable by a reasonable, practicable inspe ction. In the
Honea case we refused to take judicial notice of the te chnical practices and information available to
the bottling industry for finding defects which cannot be se en. In the present case, however, we are
supplied with evidence of the standard methods used for testing bottles.
A chemical engineer for the Owens-Illinois Glass Company and its Pacific Coast subsidiary, maker
of Coca Cola bottles, explained how glass is manufactured and the me thods used in testing and
inspecting bottles. He testified that his company is the largest manufacturer of glass containers in
the United States, and that it uses the standard methods for testing bottles recommended by the
glass containers association. A pressure te st is made by taking a sample from each mold every three
hours—approximately one out of every 600 bottles—and subjecting the sample to an internal pressure
of 450 pounds per square inch, which is sustaine d for one minute . (The normal pressure in Coca Cola
bottles is less than 50 pounds per square inch.) The sample bottles are also subje cted to the standard
thermal shock test. The witness stated that these tests are ‘pretty near’ infallible.
It thus appears that there is available to the industry a commonly-used method of testing bottles for
defects not apparent to the e ye, which is almost infallible. Since Coca Cola bottles are subje cted to
these tests by the manufacturer, it is not likely that they contain defects when delivered to the bottler
which are not discoverable by visual inspection. Both new and used bottles are filled and distributed
by defendant. The use d bottles are not again subje cted to the tests referred to above, and it may be
inferred that defects not discoverable by visual inspection do not develop in bottles after they are
manufactured. Obviously, if such defects do *461 occur in used bottles there is a duty upon the bottler
to make appropriate tests before the y are refilled, and if such tests are not commercially practicable
the bottles should not be re-used. This would seem to be particularly true where a charged liquid is
placed in the bottle. It follows that a defect which would make the bottle unsound could be discovered
by reasonable and practicable tests.
Although it is not clear in this case whe ther the explosion was caused by an excessive charge or
a defect in the glass there is a sufficient showing that neither cause would ordinarily have be en
present if due care had be en used. Further, defendant had exclusive control over both the charging
and inspection of the bottles. Accordingly, all the requirements necessary to entitle plaintiff to rely on
the doctrine of res ipsa loquitur to supply an inference of negligence are present.
It is true that defendant presented evidence tending to show that it exercised considerable precaution
by carefully regulating and checking the pressure in the bottles and by making visual inspections for
572 | Express Warranty

defects in the glass at several stages during the bottling process. It is well settled, however, that when
a defendant produces evidence to rebut the inference of negligence which arises upon application of
the doctrine of res ipsa loquitur, it is ordinarily a question of fact for the jury to determine whether
the inference has been dispelled. …
The judgment is affirmed. SHENK, CURTIS, CARTER, and SCHAUER, JJ., concurred. EDMONDS, J,
dissenting. Rehearing denied.
TRAYNOR, Justice, concurring.
I concur in the judgment, but I believe the manufacturer’s negligence should no longer be singled out
as the basis of a plaintiff’s right to recover in cases like the present one. In my opinion it should now be
recognized that a manufacturer incurs an absolute liability when an article that he has placed on the
market, knowing that it is to be use d without inspection, proves to have a defect that causes injury to
human beings. MacPherson v. Buick Motor Co., 217 N.Y. 382, established the principle, recognized by
this court, that irrespective of privity of contract, the manufacturer is responsible *462 for an injury
caused by such an article to any person who comes in lawful contact with it. [***] In these cases
the source of the manufacturer’s liability was his negligence in the manufacturing process or in the
inspection of component parts supplied by others.
Even if there is no negligence, however, public policy demands that responsibility be fixed wherever
it will most effectively reduce the hazards to life and he alth inherent in defective products that reach
the market. It is evident that the manufacturer can anticipate some hazards and guard against the
recurrence of others, as the public cannot. Those who suffer injury from defective products are
unprepared to meet its consequences. The cost of an injury and the loss of time or he alth may be
an overwhelming misfortune to the pe rson injured, and a needless one, for the risk of injury can
be insured by the manufacturer and distributed among the public as a cost of doing business. It is
to the public interest to discourage the marketing of products having defects that are a menace to
the public. If such products nevertheless find their way into the market it is to the public interest
to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if
he is not negligent in the manufacture of the product, is responsible for its reaching the market.
However intermittently such injuries may occur and however haphazardly they may strike, the risk of
their occurrence is a constant risk and a general one. Against such a risk there should be general and
constant protection and the manufacturer is best situated to afford such protection.
The injury from a defective product does not become a matter of indifference be cause the de fect
arises from causes other than the negligence

of the

manufacturer, such as negligence

of a

submanufacturer of a component part whose defects could not be revealed by inspection [***] or
unknown causes that even by the de vice of res ipsa loquitur cannot be classified as negligence of
the manufacturer. The inference of negligence may be dispelled by an affirmative showing of proper
care. If the e vidence against the fact inferred *463 is ‘clear, positive, uncontradicted, and of such a
nature that it can not rationally be disbelieved, the court must instruct the jury that the none xistence
of the fact has been established as a matter of law.’ Blank v. Coffin, 20 Cal.2d 457, 461. An injured
person, however, is not ordinarily in a position to refute such evidence or identify the cause of the
defect, for he can hardly be familiar with the manufacturing process as the manufacturer himself is.
Express Warranty | 573

In leaving it to the jury to decide whe ther the inference has be en dispelled, regardless of the e vidence
against it, the negligence rule approache s the rule of strict liability. It is needlessly circuitous to make
negligence the basis of recovery and impose what is in reality liability without negligence. If public
policy demands that a manufacturer of goods be responsible for their quality regardless of negligence
there is no reason not to fix that responsibility openly.
In the case of foodstuffs, the public policy of the state is formulated in a criminal statute. Section 26510
of the Health and Safety Code, St.1939, p. 989, prohibits the manufacturing, preparing, compounding,
packing, selling, offering for sale, or keeping for sale, or advertising within the state, of any adulterated
food. Section 26470, St.1941, p. 2857, declares that food is adulterated when ‘it has been produced,
prepared, packed or held under insanitary conditions whereby it may have be come contaminated with
filth, or whereby it may have be en rendered diseased, unwholesome or injurious to health.’ The statute
imposes criminal liability not only if the food is adulterated, but if its container, which may be a bottle
(§ 26451, St.1939, p. 983), has any deleterious substance (§ 26470(6), or renders the product injurious to
health (§ 26470(4)). The criminal liability under the statute attaches without proof of fault, so that the
manufacturer is under the duty of ascertaining whether an article manufactured by him is safe. People
v. Schwartz, 28 Cal.App.2d Supp. 775. Statutes of this kind result in a strict liability of the manufacturer
in tort to the member of the public injured. [***]
The statute may well be applicable to a bottle whose de fects cause it to explode. In any event it
is significant that the statute imposes criminal liability without fault, reflecting the public policy of
protecting the public from dangerous products placed on the market, irrespective of negligence in
their manufacture. While the Legislature imposes criminal liability *464 only with regard to food
products and their containers, there are many other sources of danger. It is to the public interest to
prevent injury to the public from any defective goods by the imposition of civil liability generally.
The retailer, even though not equipped to test a product, is under an absolute liability to his customer,
for the implie d warranties of fitness for proposed use and merchantable quality include a warranty of
safety of the product [***] The courts recognize, however, that the retailer cannot bear the burden
of this warranty, and allow him to recoup any losses by means of the warranty of safety attending the
wholesaler’s or manufacturer’s sale to him. Ward v. Great Atlantic & Pacific Tea Co., supra; see Waite,
Retail Responsibility and Judicial Law Making, 34 Mich. L. Rev. 494, 509. Such a procedure, however,
is needlessly circuitous and engenders wasteful litigation. Much would be gaine d if the injured person
could base his action directly on the manufacturer’s warranty.
The liability of the manufacturer to an immediate buyer injured by a defective product follows without
proof of negligence from the implie d warranty of safety attending the sale. Ordinarily, however, the
immediate buyer is a dealer who does not inte nd to use the product himself, and if the warranty of
safety is to serve the purpose of protecting health and safety it must give rights to others than the
dealer. In the words *465 of Judge Cardozo in the MacPherson case [217 N.Y. 382,]: ‘The de aler was
indeed the one pe rson of whom it might be said with some approach to certainty that by him the car
would not be use d. Yet the defendant would have us say that he was the one pe rson whom it was
under a legal duty to protect. The law does not lead us to so inconsequent a conclusion.’ While the
defendant’s negligence in the MacPherson case made it unnecessary for the court to base liability
on warranty, Judge Cardozo’s reasoning recognized the injured person as the real party in interest
574 | Express Warranty

and effectively disposed of the the ory that the liability of the manufacturer incurred by his warranty
should apply only to the imme diate purchaser. It thus paves the way for a standard of liability that
would make the manufacturer guarantee the safety of his product even when there is no negligence.
This court and many others have e xtended protection according to such a standard to consumers
of food products, taking the vie w that the right of a consumer injured by unwholesome food does
not depend ‘upon the intricacies of the law of sales’ and that the warranty of the manufacturer to
the consumer in absence of privity of contract rests on public policy. [***] Dangers to life and he alth
inhere in other consumers’ goods that are defective and there is no reason to differentiate them from
the dangers of defective food products. [***]
In the food products cases the courts have resorted to various fictions to rationalize the e xtension of
the manufacturer’s warranty to the consumer: that a warranty runs with the chattel; that the cause
of action of the de aler is assigned to the consumer; that the consumer is a third party beneficiary of
the manufacturer’s contract with the de aler. They have also he ld the manufacturer liable on a mere
fiction of negligence: *466 ‘Practically he must know it [the product] is fit, or take the consequences,
if it proves destructive.’ [***] Such fictions are not ne cessary to fix the manufacturer’s liability under
a warranty if the warranty is severed from the contract of sale be tween the dealer and the consumer
and based on the law of torts [cc] As the court said in Greco v. S. S. Kresge Co., supra [277 N.Y. 26],
‘Though the action may be brought solely for the breach of the implie d warranty, the breach is a
wrongful act, a default, and, in its essential nature, a tort.’ [c]
As handicrafts have be en replaced by mass production with its great markets and transportation
facilitie s, the close relationship between the producer and consumer of a product has been altered.
Manufacturing processes, frequently valuable se crets, are ordinarily either inaccessible to or be yond
the ken of the general public. The consumer no longer has means or skill enough to investigate
for himself the soundness of a product, even when it is not contained in a sealed package, and his
erstwhile vigilance has be en lulled by the ste ady efforts of manufacturers to build up confidence by
advertising and marketing devices such as trade-marks. See Thomas v. Winchester, 6 N.Y. 397; Baxter
v. Ford Motor Co., 168 Wash. 456; [cc].
Consumers no longer approach products warily but accept them on faith, relying on the reputation of
the manufacturer or the trade mark. See [cc] Schechter, The Rational Basis of Trade Mark Protection,
40 Harv.L.Rev. 813, 818. Manufacturers have sought to justify that faith by increasingly high standards
of inspection and a readiness to make good on defective products by way of replacements and
refunds. The manufacturer’s obligation to the

consumer must keep pace

with the

changing

relationship between them; it cannot be escaped because the marketing of a product has become
so complicated as to require one or more *468 intermediaries. Certainly there is greater reason to
impose liability on the manufacturer than on the retailer who is but a conduit of a product that he is
not himself able to test.
The manufacturer’s liability should, of course, be defined in terms of the safety of the product in
normal and proper use, and should not extend to injuries that cannot be traced to the product as it
reached the market.

Express Warranty | 575

Note 1. Why isn’t the availability of RIL enough, in Justice Traynor’s view, to solve the pressing public
policy concerns around defective products?
Note 2. The majority opinion follows a “formalist” approach: it uses the doctrine of res ipsa loquitur
and existing tools and rules and arrives at an outcome for the plaintiff. To do so, however, a court
might have to consider custom evidence from the bottling industry, expert evidence on that topic,
witness testimony on the handling of the bottle during its entire life cycle, and extensive factual
accounts from all the possible parties and their witnesses. Justice Traynor’s concurrence reflects
impatience with this means of resolving the problem, even if he approves of the outcome.
Recall how in Coca-Cola Bottling Works v. Lyons (the Mississippi case), the court noted that it could
use a the ory of joint ownership, or a theory that soda was a gift whose title “ran” with the obje ct,
to try to circumvent the privity requirement if necessary. That’s an example of a court reverting to
formalism to show how the law’s formal rules could permit recovery. The court there inste ad grounded
its holding in a functionalist approach that used substantive tort principles to find that recovery
should be allowed even without formal privity. Traynor’s concurrence displays that same commitment
to functionalizing tort law. He states that “[i]n the food products cases the courts have resorted to
various fictions to rationalize the e xtension of the manufacturer’s warranty.” By characterizing these
tactics as “fictions,” Traynor is critiquing courts that use and contort formal rules, simply because the y
are possible me ans of resolution (like the joint ownership theory in Lyons), when they are not the be st
or the rational means to use. Traynor would have preferred the functionalist reasoning of the Lyons
court’s ultimate holding and rationale. In his view, the proper course of action was to allow function,
rather than form, to dictate the legal analysis and outcome.
Note 3. Identify at least two of Justice Traynor’s policy arguments. Why is he concurring rather than
dissenting? What do you suppose about the fact that he was concurring, rather than assigned to write
the majority opinion? This concurrence is one of the most famous opinions in 20

th

century tort law,

which is somewhat unusual for a concurring opinion. It is widely thought to have paved the way for
strict liability in products liability cases. In the ne xt case, Justice Traynor writes for the majority,
building on his arguments in Escola.

576 | Express Warranty

28. Strict Products Liability
Greenman v. Yuba Power Products, Inc., Supreme Court of California
(1963)
(59 Cal.2d 57)
Plaintiff brought this action for damages against the retailer and the manufacturer of a Shopsmith,
a combination power tool that could be use d as a saw, drill, and wood lathe. He saw a Shopsmith
demonstrated by the retailer and studied a brochure prepared by the manufacturer. He de cided he
wanted a Shopsmith for his home workshop, and his wife bought and gave him one for Christmas in
1955. In 1957 he bought the ne cessary attachments to use the Shopsmith as a lathe for turning a large
piece of wood he wishe d to make into a chalice. After he had worked on the pie ce of wood several
times without difficulty, it suddenly flew out of the machine and struck him on the forehead, inflicting
serious injuries. About ten and a half months later, he gave the retailer and the manufacturer written
notice of claimed breaches of warranties and filed a complaint against them alleging such breaches
and negligence.
After a trial before a jury, the court ruled that there was no evidence that the retailer was negligent
or had breached any express warranty and that the manufacturer was not liable for the breach of
any implied warranty. Accordingly, it submitted to the jury only the cause of action alleging breach
of implied warranties against the retailer and the causes of action alleging negligence and breach
of express warranties against the manufacturer. The jury returned a verdict for the retailer against
plaintiff and for plaintiff against the manufacturer in the amount of $65,000. The trial court denied the
manufacturer’s motion for a new trial and *60 entered judgment on the verdict. The manufacturer and
plaintiff appeal. Plaintiff seeks a reversal of the part of the judgment in favor of the retailer, however,
only in the event that the part of the judgment against the manufacturer is reversed.
Plaintiff introduced substantial evidence

that his injuries were

caused by defective design and

construction of the Shopsmith. His expert witnesses testified that inadequate se t screws were use d to
hold parts of the machine together so that normal vibration caused the tailstock of the lathe to move
away from the pie ce of wood being turned permitting it to fly out of the lathe. They also testified
that there were other more positive ways of fastening the parts of the machine together, the use
of which would have prevented the accident. The jury could therefore reasonably have concluded
that the manufacturer negligently constructed the Shopsmith. The jury could also reasonably have
concluded that statements in the manufacturer’s brochure were untrue, that they constituted express
warranties, and that plaintiff’s injuries were caused by their breach. The manufacturer contends,
however, that plaintiff did not give it notice of breach of warranty within a reasonable time and that
therefore his cause of action for breach of warranty is barred by section 1769 of the Civil Code. Since it
cannot be de termined whether the verdict against it was based on the negligence or warranty cause of

Strict Products Liability | 577

action or both, the manufacturer concludes that the error in presenting the warranty cause of action
to the jury was prejudicial.
Section 1769 of the Civil Code provides: “In the absence of express or implied agreement of the parties,
acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other
legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if after
acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or
warranty within a reasonable time after the buyer knows, or ought to know of such breach, the seller
shall not be liable therefor.” [***] *61
The notice requirement of section 1769, however, is not an appropriate one for the court to adopt
in actions by injured consumers against manufacturers with whom they have not de alt. [***] “As
between the immediate parties to the sale, [the notice requirement] is a sound commercial rule,
designed to protect the seller against unduly delayed claims for damages. As applied to personal
injuries, and notice to a remote seller, it becomes a booby-trap for the unwary. The injured consumer
is seldom ‘steeped in the business practice which justifies the rule,’ [***] and at least until he has had
legal advice it will not occur to him to give notice to one with whom he has had no de alings.” (Prosser,
Strict Liability to the Consumer, 69 Yale L.J. 1099, 1130, footnotes omitted.)
It is true that in [earlier California cases] the court assumed that notice of breach of warranty must
be given in an action by a consumer against a manufacturer. Since in those cases, however, the
court did not consider the question whether a distinction exists between a warranty based on a
contract between the parties and one imposed on a manufacturer not in privity with the consumer,
the decisions are not authority for rejecting the rule. [cc]
We conclude, therefore, that even if plaintiff did not give timely notice of breach of warranty to the
manufacturer, his cause of action based on the representations contained in the brochure was not
barred. Moreover, to impose strict liability on the manufacturer under the circumstances of this case,
it was not necessary for plaintiff to establish an express warranty as defined in section 1732 of the
Civil Code. A manufacturer is strictly liable in tort when an article he places on the market, knowing
that it is to be use d without inspection for defects, proves to have a defect that causes injury to a
human being. Recognized first in the case of unwholesome food products, such liability has now been
extended to a variety of other products that create as great or greater hazards if defective. (Peterson
v. Lamb Rubber Co., 54 Cal.2d 339, 347 (grinding wheel); Vallis v. Canada Dry Ginger Ale, Inc., 190
Cal.App.2d 35, 42-44 (bottle); Jones v. Burgermeister Brewing Corp., 198 Cal.App.2d 198, 204 (bottle);
Gottsdanker v. Cutter Laboratories, 182 Cal.App.2d App.2d 602, 607 (vaccine); McQuaide v. Bridgport
Brass Co., D.C., 190 F.Supp. 252, 254 (insect spray); Bowles v. Zimmer Manufacturing Co., 7 Cir., 277
F.2d 868, 875 (surgical pin); Thompson v. Reedman, D.C., 199 F.Supp. 120, 121 (automobile); Chapman v.
Brown, D.C., 198 F.Supp. 78, 118, 119, affd. Brown v. Chapman, 9 Cir., 304 F.2d 149 (skirt); B. F. Goodrich
Co. v. Hammond, 10 Cir., 269 F.2d 501, 504 (automobile tire); Markovich v. McKesson and Robbins, Inc.,
106 Ohio App. 265 *63 (home permanent); Graham v. Bottenfield’s Inc., 176 Kan. 68(hair dye); General
Motors Corp. v. Dodson, 47 Tenn.App. 438, 661 (automobile); Henningsen v. Bloomfield Motors, Inc., 32
N.J. 358 (automobile); Hinton v. Republic Aviation Corporation, D.C., 180 F.Supp. 31, 33 (airplane).)
Although in these cases strict liability has usually been based on the the ory of an express or implied
578 | Strict Products Liability

warranty running from the manufacturer to the plaintiff, the abandonment of the requirement of a
contract between them, the recognition that the liability is not assumed by agreement but imposed
by law [***], and the refusal to permit the manufacturer to define the scope of its own responsibility
for defective products [***], make cle ar that the liability is not one governed by the law of contract
warranties but by the law of strict liability in tort. Accordingly, rules defining and governing warranties
that were de veloped to meet the ne eds of commercial transactions cannot properly be invoked to
govern the manufacturer’s liability to those injured by their defective products unless those rules also
serve the purposes for which such liability is imposed.
We ne ed not recanvass the reasons for imposing strict liability on the manufacturer. They have be en
fully articulated in the cases cited above. (See also 2 Harper and James, Torts, ss 28.15-28,16, pp.
1569-1574; Prosser, Strict Liability to the Consumer, 69 Yale L.J. 1099; Escola v. Coca Cola Bottling
Co., 24 Cal.2d 453, 461, concurring opinion.) The purpose of such liability is to ensure that the costs
of injuries resulting from defective products are borne by the manufacturers that put such products
on the market rather than by the injured persons who are powerless to protect themselves. Sales
warranties serve this purpose *64 fitfully at best. (See Prosser, Strict Liability to the Consumer, 69 Yale
L.J. 1099, 1124-1134.) In the present case, for example, plaintiff was able to ple ad and prove an e xpress
warranty only because he read and relied on the representations of the Shopsmith’s ruggedness
contained in the manufacturer’s brochure. Implicit in the machine ’s presence on the market, however,
was a representation that it would safely do the jobs for which it was built.
Under these circumstances, it should not be

controlling whether plaintiff selected the

machine

because of the statements in the brochure, or because of the machine ’s own appearance of excellence
that belied the defect lurking beneath the surface, or because he me rely assumed that it would safely
do the jobs it was built to do. It should not be controlling whether the details of the sales from
manufacturer to retailer and from retailer to plaintiff’s wife were such that one or more of the implie d
warranties of the sales act arose. [cc] “The remedies of injured consumers ought not to be made to
depend upon the intricacies of the law of sales.” [***] To establish the manufacturer’s liability it was
sufficient that plaintiff proved that he was injured while using the Shopsmith in a way it was intended
to be use d as a result of a defect in design and manufacture of which plaintiff was not aware that made
the Shopsmith unsafe for its intended use.
… The judgment is affirmed.
Note 1. What is the

holding in this case? How does Justice

Traynor build on—and extend—the

concurrence he authored in Escola v. Coca Cola Bottling (supra under Express Warranty)?
Note 2. Why does Justice Traynor find that Greenman’s failure to provide timely notice should not bar
his breach of warranty claim against the manufacturer?
Note 3. In what way was the Shopsmith potentially defectively constructed?
Note 4. The jury was presented with theories of negligent construction as well as breach of express
warranties. The manufacturer argued on appeal that the jury verdict might have be en Traynor decided
due to the breach of warranty claim which (it asserted) was time-barred. Traynor decided that it was
irrelevant which theory of liability had persuaded; why?
Strict Products Liability | 579

Check Your Understanding – Set 34

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=82#h5p-99

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=82#h5p-100

The question was aimed at distinguishing consistent views in favor of expanding liability from a theory
under which one might shrink liability instead (namely, that liability should not attach if the risks are low
or infrequent or unforeseeable, or all of the above). The distinction is important partly because it reflects
the schism in products liability law between strict liability (Traynor’s aspirations) and negligence (which
is what much of the law in this area eventually returned to as a standard, with the exceptions of
manufacturing defect, express warranty, or any jurisdiction-specific rules creating strict liability). Some
jurisdictions no longer allow strict liability for products liability cases at all.

580 | Strict Products Liability

29. Product Liability Based on Dangerous or
Defective Condition
Restatement (Second) of Torts: Defective, Unreasonably Dangerous Products
In 1965, The American Law Institute endorsed The Restatement (Second) of Torts § 402(A) which,
under certain conditions, imposes strict liability upon a seller or manufacturer of a product who sells
“any product in a defective condition unreasonably dangerous to the user or consumer…” (emphasis
added) for physical harm to the consumer caused by such product. Section 402(A) has since be en
adopted by the vast majority of states.
§ 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user
or consumer or to his property is subject to liability for physical harm thereby caused to the
ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change
in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product,
and
(b) the user or consumer has not bought the

product from or entered into any

contractual relation with the seller.
Note 1. In Section 402A(1), what does “a defective condition unreasonably dangerous to the user”
mean? Can a defective condition escape legal consequences for its manufacturer or seller if it is only
reasonably dangerous? Who do you think is likely to determine such a condition’s defectiveness? How
about the reasonableness of its dangerousness? Why do you think that is so? What sorts of evidence
might be used to prove defectiveness, dangerousness, and reasonableness?
Note 2. Would it surprise you to learn that the phrase, as adopted in most jurisdictions, expressly
omits the

word “unreasonably,” so that the

standard is often stated thus: “defective

condition

dangerous to the user.” Why do you think that might be?
Note 3. How do Sections 402A(1)(a) and (b) limit the scope of liability? What do you imagine are the
real-world effects of such provisions?
Note 4. How do Sections 402A(2)(a) and (b) expand the scope of liability? What is the practical legal
effect of each of those provisions?
Product Liability Based on Dangerous or Defective
Condition | 581

Restatement (Third) of Torts: Defective Products: Manufacturing Defect, Defective Design, and
Defective Warnings
In addition to § 402(A), The American Law Institute adopte d Restatement (Third) of Torts §§ 1 & 2
in 1998. These newer sections impose liability upon commercial sellers and distributors for harm
caused by defective

products, and delineate

categories of “product defect.” Sections 1 & 2 have

bee
n controversial due partly to their use of the

reasonable alternative design (as an apparent

requirement imposed on the plaintiff rather than a theory of liability and admissible e vidence available
for the plaintiff). The Third Restatement sets out three types of defects that may render a product
“unreasonably dangerous”: manufacturing; design; and warning. The case law has widely adopted this
categorization and the cases in this section of the book follow that organizing principle. A particular
unit of a product may be defective be cause of an imperfection in the manufacturing process. (Ford
Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007). Additionally, a product’s design may render the
item “unreasonably dangerous.” Ford Motor Co. v. Trejo, 133 Nev. 520 (2017). Finally, a failure to post
adequate warnings may deem a product “unreasonably dangerous.” Shinedling v. Sunbeam Products,
Inc., U.S. Dist. Court, C.D. Cal. (2014) (2014 WL 12589646).
Restatement (Third) of Torts: Products Liability (1998)
§ 1. Liability of Commercial Seller or Distributor for Harm Caused by Defective Products
One engaged in the business of selling or otherwise distributing products who sells or distributes a
defective product is subject to liability for harm to persons or property caused by the defect.
§ 2. Categories of Product Defect
A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is
defective in design, or is defective because of inadequate instructions or warnings.
A product:
(a) contains a manufacturing defect when the product departs from its intended design even
though all possible care was exercised in the preparation and marketing of the product;
(b) is defective in design when the foreseeable risks of harm posed by the product could have
been reduced or avoided by the adoption of a reasonable alternative design by the seller or
other distributor, or a predecessor in the commercial chain of distribution, and the omission
of the alternative design renders the product not reasonably safe;
(c) is defective because of inadequate instructions or warnings when the foreseeable risks of
harm posed by the product could have be en reduced or avoided by the provision of reasonable
instructions or warnings by the seller or other distributor, or a predecessor in the commercial
chain of distribution, and the omission of the instructions or warnings renders the product
not reasonably safe.

582 | Product Liability Based on Dangerous or Defective Condition

Exam tip: When facing a products liability fact pattern, you will need to identify what sort of defect,
if any, exists, before you can identify which liability regime will apply.

Manufacturing Defects
Ford Motor Co. v. Ledesma, Supreme Court of Texas (2007)
(242 S.W.3d 32)
In this products liability case, Ford Motor Co. argues that the trial court reversibly erred in charging
the jury by giving an incomplete definition of “manufacturing defect.” We agree. [***] We remand the
case for a new trial under a jury charge that reflects our applicable caselaw, including our decision
today. In March 1999, Tiburicio Ledesma, Jr. purchased a new Ford F–350 Super Duty pickup truck for
his construction business. The truck had four rear tires, two on each side, surrounded by fiberglass
fenders extending beyond the sides of the truck.
On June 5, 1999, Ledesma turned onto a two-lane street in Austin and began to accelerate. He testified
that after shifting gears the truck suddenly began to lurch, and he lost control, striking two parked
cars, a Firebird and a Civic, on the side of the street. The truck then hit the street curb and came to
rest. At the time of the accident, the truck’s odometer read about 4,100 miles. Power from the truck
engine is conveyed to the rear axle by the drive shaft, which connects the transmission in the front of
the truck with the differential/rear axle assembly in the rear. As seen in the trial exhibit reproduced
below, the rear-axle housing is attached to two sets of rear leaf springs by u-bolts, which wrap around
the axle housing and are bolte d to a rear spring plate that sits on top of the le af-spring assembly.
On each side of the truck, two u-bolts attach the rear-axle housing to a spring plate and se t of leaf
springs.

Both parties agree that the truck’s rear leaf spring and axle assembly came apart and that this
separation caused the drive shaft to dislodge from the transmission. The core dispute centers on when
and why this malfunction occurred and whether it caused the collision or resulted from it. That is, did
a manufacturing defect trigger the right rear-axle displacement and cause Le desma to lose control

Product Liability Based on Dangerous or Defective Condition | 583

of the truck and strike the parked cars (as Ledesma claims), or did the right rear axle de tach when
Ledesma struck the parked cars and curb (as Ford claims)?
At trial, Ledesma claimed that he lost control of the truck when its drive shaft separated from
the

transmission and “pronged” on the

pavement, causing him to hit the

parked cars. A police

officer testified that he investigated the accident scene and prepared a report based on Ledesma’s
description of the accident. The report makes no mention of any other witnesses. Ledesma also
presented two expert witnesses in support of his manufacturing defect claim, as discussed below.
Ford presented an expert, Dan May, in support of its theory that the axle-to-spring attachment failed,
not because of a manufacturing defect, but because of the forces exerted on it when Ledesma struck
the parked vehicles and curb. Among other efforts to discredit May, Ledesma emphasized to the jury
that May was a long-time Ford employee and had never found a defect in a Ford product.
Ford also called the

owner of the

Firebird, Edward Plyant, who testified by deposition that he

witnessed the accident from a driveway. Plyant testified that Ledesma was speeding and inattentive
and struck the Firebird at a high rate of speed. Ledesma testified that Plyant did not see the accident,
but came outside after hearing the ensuing commotion, and that Plyant had unsuccessfully sued
Ledesma.
The jury sided 11–1 with Ledesma, finding that a manufacturing defect caused the accident and that
Ledesma was not contributorily negligent, and awarding economic damages of $215,380. The court of
*37 appeals affirmed. [***]
A. Admissibility of Ledesma’s Expert Testimony. [discussion omitted]
B. Jury Charge
Ford complains that, ove
r its objection, the

trial court improperly instructed the

jury on the

definitions of manufacturing defect and producing cause. The jury affirmatively answered Question
No. 1 of the jury charge, which asked:
Was there a manufacturing defect in the 1999 Ford F–350 pickup truck at the time it left Ford’s
possession that was a producing cause of the June 5, 1999 incident in question?
A “defect” means a condition of the product that renders it unreasonably dangerous. An
“unreasonably dangerous” product is one that is dangerous to an extent beyond that which
would be contemplated by the ordinary user of the product, with the ordinary knowledge
common to the community as to the product’s characteristics.
“Producing cause” means an efficient, exciting, or contributing cause

that, in a natural

sequence, produces the incident in question. There may be more than one producing cause.

584 | Product Liability Based on Dangerous or Defective Condition

1

In defining defect, the trial court followed Texas Pattern Jury Charge (PJC) 71.3. As specified in the
comment to PJC 71.3, the trial court included in the question the definition of producing cause found
in PJC 70.1. Ford objected that both PJC 71.3 and PJC 70.1 were “not accurate unde r the law” and failed
to track this Court’s precedent. We agree. Ledesma may have argued a manufacturing defect to the
jury, but the law requires the jury to determine specifically whether he had proven one. The jury here
received a legally incorrect charge that omitted an indispensable element: that the product deviated,
in its construction or quality, from its specifications or planned output in a manner that rendered it
unreasonably dangerous.
1. The Court’s Charge on Manufacturing Defect Failed to Include the Esse ntial Element of a Deviation
from Design
The trial court submitted the pattern jury charge’s definition on manufacturing defect. We agree with
Ford, however, that the model charge is erroneous, as it doe s not include the requirement that a
manufacturing defect must deviate from its specifications or planned output in a manner that renders
the product unreasonably dangerous. We established this standard in American Tobacco Co. v. Grinnell
(951 S.W.2d 420, 434 (Tex.1997)) and in three other cases since Grinnell was issued a decade ago, we
have recognized, with essentially identical statements, the “deviation from specifications or planned
output” requirement [Citations omitted]. This *42 requirement is separate from, and in addition to,
the requirements that the product was defective when it left the manufacturer and that the defect
was a producing cause of the plaintiff’s injuries. [***]
We note that the current Restatement of Torts essentially follows the same concept of a deviation
from the manufacturer’s design by providing that a product “contains a manufacturing defect when
the product departs from its intended design even though all possible care was exercised in the
2

preparation and marketing of the product….” The requirement of a deviation from the manufacturer’s
specifications or planned output serves the essential purpose

of distinguishing a manufacturing

defect from a design defect. PJC 71.3 refers to a “manufacturing defect” in the product “at the time it
left” the manufacturer. A jury—without further guidance—may view any defect in a product at the time
it leaves the manufacturer as satisfying the PJC’s reference to a “manufacturing defect,” rather than
making the essential distinction between a manufacturing and design defect. As it stood, the court’s
charge merely inquired whether a “condition” of the product rendered it unreasonably dangerous.
That “condition” could have been a design defect or a manufacturing defect.
The distinction is material. The danger of allowing a jury to conclude that the defect was or might
have be en a design defect is that “[a] design defect claim requires proof and a jury finding of a safer
alternative design.” [fn] The charge did not make such an inquiry.
Moreover, requiring a deviation from specifications or planned output permits a jury to determine
whether a specific defect caused the accident, rather than premising liability on a belief that a product

1. COMM. ON PATTERN JURY CHARGES, STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES—MALPRACTICE,
PREMISES & PRODUCTS PJC 71.3 (2d ed.2002).
2. RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2(a) (1998); see also id. § 1 cmt. a (“A manufacturing defect is
a physical departure from a product’s intended design.”).
Product Liability Based on Dangerous or Defective Condition | 585

failure, standing alone, is enough to find a product defect. Texas law does not generally recognize a
product failure or malfunction, standing alone, as sufficient proof of a product defect. [fn] Instead,
we have held that “a specific defect must be identified by competent evidence and other possible
causes must be ruled out.” [fn] Our law requires more than finding an undifferentiated “condition”
that renders the product unreasonably dangerous, which is all the court’s charge mandated. While a
products liability claim does not of course require proof of manufacturer negligence, the deviation
from design that caused the injury must be identified. Otherwise, the jury is invited to find liability
based on speculation as to the cause of the incident in issue.
Requiring proof of a deviation from manufacturer specifications or planned output also comports
with our recognition that expert testimony is generally encouraged if not required to establish a
products liability claim. [Citations omitted] If juries were *43 generally free to infer a product defect
and injury causation from an accident or product failure alone, without any proof of the spe cific
deviation from design that caused the accident, expert testimony would hardly seem essential. Yet we
have repeatedly said otherwise.
For these reasons, we

hold that the

court’s charge

was fundamentally flawed in omitting the

requirement that the product deviate, in its construction or quality, from its specifications or planned
output in a manner that renders it unreasonably dangerous.
Since Ford preserved error, we turn to whe ther the charge error is reversible. We hold that it is. “It
is fundamental to our system of justice that parties have the right to be judged by a jury properly
instructed in the law.” [fn] “There can be no question that it was [the plaintiff’s] burden to obtain
affirmative answers to jury questions as to the necessary elements of his cause of action.” [fn] The jury
was not asked to decide an essential element of a manufacturing defect claim, namely whether the
u-bolt deviated from Ford’s specifications or planned output.
[***] In the pending case, the trial court followed the [Pattern Jury Charges (“PJC”)]. On one occasion
we not only approved a PJC issue and instruction for design defect cases, we e xpressly disapproved
of the use of any other instructions in such cases, [fn] prompting one court of appeals to remark that
“[o]ur highest court has made it abundantly clear that to deviate from the pattern jury charges in
products liability cases is a perilous journey.” Given that our trial courts routinely rely on the Pattern
3

Jury Charges in submitting cases to juries, and we rarely disapprove of these charges, we conclude
that the interests of justice would not be served by reversing and rendering judgment in favor of Ford.
The more appropriate remedy is to reverse and remand for a new trial.
Note 1. The court remands with a warning about the “perilous journey” of deviating from pattern jury
instructions. If the challenges of instructing juries are so high, and the risks of error so seemingly
significant that judges describe the adjudication as “perilous,” does it continue to make se nse to
allocate so much authority to juries? Can you think of alternatives (in terms of decisional allocation,
instructional practice, or doctrinal development)?

3. Indeed, Ford’s own brief contends that until this Court corrects the PJC 71.3, “it will continue to be used in every case in
Texas in which [a manufacturing] defect is alleged.”
586 | Product Liability Based on Dangerous or Defective Condition

Note 2. For your own review and understanding, articulate the difference be tween a manufacturing
defect and a design defect, as you understand it so far. Can you come up with an example of what
those might look like in a domain that is familiar to you because of a product you have purchased or
routinely purchase?
Note 3. What sort of evidence would a plaintiff need to show to prove that a defect caused the accident
that caused the plaintiff’s injury? What sort of evidence might a defendant offer if trying to prove that
the accident caused the product to look defective?

Check Your Understanding – Set 35

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=85#h5p-101

Product Liability Based on Dangerous or Defective Condition | 587

30. Design Defects (Socratic Script)
Ford Motor Company v. Trejo, Supreme Court of Nevada (2017)
(133 Nev. 520)
[***] In 1999, appellant Ford Motor Company introduced the Ford Excursion, the largest and heaviest
SUV ever produced and sold in North America. At trial, Ford conceded that it did not perform any
physical roof-crush tests on the Excursion. In 2002, Ford ran computer-simulated testing on the
Excursion, using modeling that had been developed during the de velopment of the Super Duty pickup
trucks [on which the Excursion’s design had been based]. Ford’s internal guidelines required that a
vehicle weighing less than 8,500 pounds have a roof strength-to-weight ratio of 1.725 pounds. The
strength-to-weight ratio of the Excursion was only 1.25. If the windows *522 were not available to act
as added support (e.g., if the windows broke), the strength-to-weight ratio dropped to 0.79. Though
the Excursion’s actual weight was 7,730 pounds, its gross vehicle weight rating was 8,600 pounds.
Ford did not have internal guidelines for strength-to-weight ratios for vehicles weighing over 8,500
pounds. Therefore, Ford did not issue any recalls on the Excursion, or otherwise advise de alerships
or the public that early versions of the Excursion did not meet Ford’s internal guidelines for roof
strength.
On December 16, 2009, respondent Teresa Trejo, a resident of Las Vegas, was driving a 2000 Ford
Excursion, with a trailer attached, through New Mexico. Her husband Rafael Trejo was seated in the
passenger seat. While driving on the highway, Trejo attempted to change lanes to make room for
merging traffic. The trailer attached to the Excursion started to fishtail. Trejo swerved, and though
the Excursion slowed, it began to roll, somewhere between 1.5 and 2.5 times.
After the rollover sequence, the Excursion came to rest upside down. Trejo managed to remove her
seatbelt and exit the Excursion through the driver’s side window. She went to the passenger side of
the vehicle, but the roof was so crushed that Trejo was unable to se e Rafae l. She returned to look
through the driver’s side window. Trejo saw Rafael, who could not move but was looking back at her.
Trejo later testified that Rafael’s eyes were moving at this time. A couple driving by assisted Trejo in
removing Rafael from the vehicle. Emergency services arrived shortly thereafter and confirmed that
Rafael had died.
Trejo subsequently filed a complaint against Ford, alleging a design defect in the roof of the Excursion
and seeking damages based on twin theories of strict products liability and common law negligence.
The case proceeded to trial solely on the strict products liability theory. During trial, Trejo presented
expert testimony to support her theory of “hyperflexion”—that the roof of the Excursion crushed,
breaking and pinning Rafael’s neck, and causing him to suffocate. Trejo also presented evidence that
Ford could have reinforced the roof of the Excursion for an additional $70 in production costs, adding
an additional 70 pounds of weight to the Excursion.

588 | Design Defects (Socratic Script)

Ford presented evidence supporting its theory of “torso augmentation”—that Rafael died during the
first rollover, because the mome nt the Excursion turned upside down, the weight of Rafael’s body
“diving” into the roof caused his neck to break, killing him instantly. *523 Ford also disputed the
feasibility of Trejo’s proposed reinforcement to the roof design of the Excursion.
While se ttling jury instructions, Ford requested the district court to give design defect instructions
1

based on the “risk-utility” test set forth in the Third Restatement. To this end, Ford requested
Instruction nos. 21, 22, and 23. The

parties also provided the

district court with agreed upon

alternatives to these instructions, nos. 21A, 22A, and 23A, in the e vent the court declined to adopt the
Third Restatement. Noting that Nevada has not adopted the Third Restatement approach to claims
of design defect, the district court declined to give Ford’s requested instructions. The district court
instead gave the parties their agreed-upon alternatives which were stock instructions and reflected
the current state of the law.
Ultimately, the jury returned a special verdict in favor of Trejo, answering in the affirmative the
following two questions: (1) whether the 2000 Ford Excursion’s roof was defective in design, and, if
so, (2) whether the 2000 Ford Excursion’s roof design defect was a proximate cause of Rafael Trejo’s
death. The district court entered judgment on the jury’s $4.5 million damages award and granted in
part and denied in part Ford’s subsequent motion to retax costs. Ford filed a motion for judgment as a
matter of law or for a new trial, which the district court denied. Ford now appeals.
To determine whether a product is defective in its design under strict tort liability, Nevada has
long used the consumer-expectation test. Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 413(1970). Under
the consumer expectation test, a plaintiff must demonstrate that a product “failed to perform in
the manner reasonably to be e xpected in light of its nature and intended function and was more
dangerous than would be contemplated by the ordinary user having the ordinary knowledge available
in the community.” [c]
In 1998, the drafters of the Third Restatement proposed the risk-utility test for strict product liability
design defect claims. Under this test, a product “is defective in design when the foreseeable risks
of harm posed by the product could have be en reduced or avoided by the adoption of a reasonable
alternative de sign … and the omission of the alternative design renders the product not reasonably
safe.” *524 Restatement (Third) of Torts: Prods. Liab. § 2(b) (Am. Law Inst. 1998). Thus, under the
risk-utility test, in addition to proving elements of negligence, plaintiffs also bear the ne w burden of
proving a “reasonable alternative design.” Id.
[***] The risk-utility test, especially its requirement of proof of a reasonable alternative design, would
prove fundamentally unfair to Nevada plaintiffs. Instead of being allowed to bolster their case with
evidence of an alternative design after the discovery process, a plaintiff would face the barrie r of
establishing a reasonable alternative design from the outse t, even in those cases where no reasonable

1. The dissent conflates Ford’s requested instructions, which change the standard under which a plaintiff must prove a
design defect, with instructions that may assist a jury on how to use relevant information. Ford only proffered
instructions on the former, and once denied by the district court, agreed to the instructions given and sought no further
clarifications to assist the jury with the latter.
Design Defects (Socratic Script) | 589

design may exist, or where the de fendant is in complete control of the ne cessary information related
to product design. Because we further conclude that Trejo presented sufficient evidence of design
defect under the consumer-expectation test and causation, we affirm the judgment of the district
court. [c]
In 1966, this court examined a case in which Le o Dolinski purchased a bottle of Squirt soda from
a vending machine, took a drink, and discovered the remains of a decomposing mouse. Shoshone
Coca–Cola Bottling Co. v. Dolinski, 82 Nev. 439, 441 (1966). Dolinski presented his case to the jury
solely on the the ory of strict product liability, and the jury awarded Dolinski $2,500 in damages. In
affirming the jury’s verdict, this court determined that when a manufacturer has placed a dangerous
or defective product into the stream of commerce, sound public policy requires the imposition of
strict liability, even in those situations where “the seller has exercised all reasonable care, and the user
has not entered into a contractual relation with him.” [***]
Nonetheless, this court cautioned that while a manufacturer and distributor of a bottled beverage may
be strictly liable without a showing of negligence or privity, the adoption of strict tort liability as a
theory of recovery “does not mean that the plaintiff is relieved of the burden of proving a case.” Id. at
443. Rather, this court noted that a plaintiff was required to demonstrate that (1) the product at issue
was defective, (2) the defect existed at the time the product left the manufacturer, and (3) the defect
caused the plaintiff’s injury. [c]
Four years later in Ginnis, this court extended the doctrine of strict tort liability “to the design and
manufacture of all types of products.” 86 Nev. at 413. With respect to proving whether a product
is defective, this court also adopted the consumer-expectation test, which is set forth in Section
402A of the Restatement (Second) of Torts (Am. Law Inst. 1965). Id. at 414. In adopting the consumerexpectation test in Ginnis, this court explained that
[a]lthough the definitions of the term “defect” in the context of products liability
law use varying language, all of them rest upon the common premise that those
products are defective which are dangerous because the y fail to perform in the
manner reasonably to be expected in light of their nature and intended function.
Id. at 413 [c]. Further, defective products are “more dangerous than would be contemplated by the
ordinary user having the ordinary knowledge available in the community.” [c]
This court has subsequently recognized three categories of strict tort liability claims: manufacturing
defects, design defects, and the failure to warn. [cc] In the realm of manufacturing and design defects,
this court has consistently applied the consumer-expectation test to determine liability. [cc]
In the context of proving that a product was defective unde r the consumer-expectation test, this
court has concluded that “[a]lternative de sign is one factor for the jury to consider when evaluating
*526 whether a product is unreasonably dangerous.” [c] Therefore, a plaintiff may choose to support
their case with evidence “that a safer alternative design was feasible at the time of manufacture.”
[c] However, any alternative design presented must be commercially feasible. [***] In addition to
evidence of alternative designs, evidence of other accidents involving analogous products, post-

590 | Design Defects (Socratic Script)

manufacture design changes, and post-manufacture industry standards will support a strict product
liability claim. [c]
Ford urges this court to depart from this well-settled line of jurisprudence and adopt the risk-utility
test for design defects set forth in the Third Restatement. Under the risk-utility test, a product
is defective in design when the foreseeable risks of harm posed by the product
could have be en reduced or avoided by the adoption of a reasonable alternative
design by the seller or other distributor, or a predecessor in the commercial chain
of distribution, and the omission of the alternative design renders the product not
reasonably safe.
Restatement (Third) of Torts: Prods. Liab. § 2(b) (Am. Law Inst. 1998). The drafters of the Third
Restatement provide a number of factors relevant to analyzing whether there was a reasonable
alternative design and whether the omission of the alternative design renders a product not
reasonably safe. Some of the factors for consideration include the magnitude and probability of
foreseeable

risks of harm; the

instructions and warnings included with the

product; the

nature

and strength of consumer expectations regarding the product, including expectations arising from
product advertising and marketing; the advantages and disadvantages of product function arising
from the alternative design, as well as the effects of the alternative design on production costs; and
the effects of the alternative design on product longevity, maintenance, repair, and esthetics. Id. § 2
cmt. f.
Some analysts of the risk-utility approach have posited that the test is better suited to analyzing cases
involving complicated or technical design. These proponents of the risk-utility approach also contend
that the average consumer does not have ascertainable “expectations” about the performance of a
complex product, such as a car, in unfamiliar circumstances. See Douglas A. Kysar, The Expectations of
Consumers, 103 Colum. L. Rev. 1700, 1716 (2003). *527 Accordingly, adopting courts have observed that
when faced with a complicated or technical design, the risk-utility analysis “provides objective factors
for a trier of fact to analyze when presented with a challenge to a manufacturer’s design.” Branham v.
Ford Motor Co., 390 S.C. 203 (2010).
Based on these perceived advantages, a number of jurisdictions have e xclusively adopted the riskutility analysis in design defect cases through e
ither caselaw or statute. [Collecting cases from
Alabama, Georgia, Iowa, Kentucky, Louisiana, Mississippi, Montana and Texas)] Still others have
adopted a hybrid approach, utilizing the risk-utility approach only in complex design situations.
[Citing cases from California and Illinois]
Ford urges this court to join those jurisdictions that have concluded that the risk-utility test better
allows a jury to analyze complex cases in which consumer expectations are less clear. Ford also argues
that the risk-utility test provides a lay jury with a concrete framework in which to analyze complex or
technical products. Despite Ford’s arguments, we find that the proposed advantages of the risk-utility
test over the consumer-expectations test are largely overstated. Further, as discussed below, the
adoption of negligence standards into strict products liability, as well as the affirmative requirement

Design Defects (Socratic Script) | 591

that plaintiffs provide proof of a reasonable alternative design, stands contrary to the public policy
supporting Nevada’s long-standing use of the consumer-expectation test.
With respect to the clarity of consumer expectations, we conclude that even in cases of complex
or technical products, a lay jury is sufficiently equipped to determine whether a product performs
in a manner to be reasonably expected under certain circumstances, pursuant to the consumerexpectation test. [***]
With respect to the instant case, Ford argues that it is extremely unlikely that the Trejos bought
their Excursion with any specific expectation regarding the strength-to-weight ratio of the vehicle
roof. Nonetheless, Trejo presented sufficient evidence for the jury to conclude that the le vel of
protection actually provided by the roof in a rollover accident was less than would be e xpected
by a reasonable consumer, indicating that in this case, the distinction between the risk-utility and
consumer expectation tests is without practical difference.
Further, to the e xtent scientific or technical evidence is presented, we note that juries are often
requested to digest unfamiliar technical material. [***] “[J]uries are always called upon to make
decisions based upon complex facts in many different kinds of litigation. … The problems presented
in products liability jury trials would appear no more insurmountable than similar problems in other
areas of the law.” [cc] Ford presents no evidence that the jury was incapable of digesting the expert
testimony and evidence admitted in this case.
[***] In addition to our determination that the proposed benefits of the risk-utility test are overstated,
the risk-utility approach also presents several tangible disadvantages. When we first adopted the
theory of strict liability in Shoshone, this court reasoned that when a seller has advertised a product,
and invited and solicited its use, the seller should not be permitted to avoid the consequences of
a “disaster” by arguing that he use d all reasonable care. 82 Nev. at 442. Accordingly, the consumerexpectation test focuses on the reasonable

e xpectations of a consumer regarding the

use

and

performance of a product. Rather than focus on the product itself, the risk-utility test subverts this
analysis, focusing on the “foreseeable risks of harm” apparent to a manufacturer when adopting a
design. This inserts a negligence standard into an area of law where this court has intentionally
departed from traditional negligence analysis. See Aubin, 177 So.3d at 506; [c] (noting that the riskutility test unnecessarily “blurs the distinction between strict products liability claims and negligence
claims”). By focusing on the conduct of the manufacturer in designing and developing, rather than the
product itself, the risk-utility test is in direct conflict with the reasoning of this court in Shoshone and
its progeny.
Further, as noted by the Kansas Supreme Court, the risk-utility test
is impoverished especially insofar as the [drafters of the Third Restatement] ruled
out consumer expectations as an independent test. They thereby ignored the
centrality of what we all know as people …: the centrality of product portrayals
and images and their role in creating consumer motives to purchase or encounter
products.
[cc]. Give n the unique position of manufacturers, we agree that by advocating for the negligence592 | Design Defects (Socratic Script)

based risk-utility approach, “the Third Restatement fails to consider the crucial link *530 between a
manufacturer establishing the reasonable e xpectations of a product that in turn cause consumers to
demand that product.” Aubin at 508. [***]
The jury in this case was properly instructed on the consumer-expectation test. Further, the record
demonstrates that Trejo presented sufficient evidence to demonstrate that the roof of the Ford
Excursion failed to perform in a manner reasonably expected in light of its nature and intended
function and was more dangerous than would be contemplated by the ordinary user having the
ordinary knowledge

available

in the

community. Trejo also presented e
vidence

sufficient to

demonstrate that Rafael Trejo’s death was caused by this defect. Therefore, we affirm the judgment on
the jury verdict, as well as the post-judgment order awarding costs.
PICKERING, J., dissenting:
The jury instructions the district court gave and the majority affirms were inade quate. They told the
jury to decide this case base d solely on “consumer expectations,” that is, on how the jurors thought
an “ordinary user having the ordinary knowledge available in the community” would have e xpected
the Excursion’s roof to function in a highway-speed rollover. The district court refused Ford’s request
that the court also instruct the jury on whether, based on the e xpert testimony they heard, a feasible
alternative design existed *533 for the roof that would have protected Trejo, who was in the front
passenger seat, from being crushed in the rollover.
Neither Nevada law, nor the law nationally, supports deciding a design defect case such as this base d
solely on consumer expectations. The failure to instruct the jury on alternative design left the jurors
with no specific guidance on the law by which to decide the case. While I would not pursue an
alternative design or “risk-utility” analysis to the e xclusion of consumer expectations—a position
the majority erroneously attributes to the Restatement (Third) of Torts: Products Liability (Am. Law
Inst. 1998)—the jury can and should be instructed on alternative design in addition to consumer
expectations where, as here, evidence has be en presented to support it. As this instructional error
clouds the verdict’s reliability, I would reverse and remand for a new trial. I therefore dissent.
Nevada imposes strict liability on manufacturers and distributors who place in the hands of users a
product that is “unreasonably dangerous.” [c] As the majority notes, there are three principal types of
products liability claims: manufacturing defect; design defect; and inadequate warnings. In Ginnis v.
Mapes Hotel Corp., 86 Nev. 408, 413 (1970), we endorsed what has come to be known as the consumer
expectation test as an appropriate me ans of assessing “unreasonable dangerousness.” Under this test,
the plaintiff must demonstrate that the product “fail[ed] to perform in the manner reasonably to
be e xpected in light of [its] nature and intended function” and “was more dangerous than would
be contemplated by the ordinary user having the ordinary knowledge available in the community.”
[***] As part of, or in addition to, the consumer expectation test, Nevada has endorsed using the
existence of a safer alternative design to prove that a design defect or lack of warnings made a product
unreasonably dangerous. McCourt v. J.C. Penney Co., 103 Nev. 101, 102, 104 (1987) (citing Ginnis and
reversing because the district court erred in refusing, in a design defect case, to admit evidence of
feasible alternative design: “Alternative de sign is one factor for the jury to consider when evaluating
whether a product is unreasonably dangerous”); see also *534 [***] Robinson v. G.G.C., Inc., 107 Nev.
Design Defects (Socratic Script) | 593

135, 138 (1991) (“a manufacturer may be liable for the failure to provide a safety device if the inclusion
of the de vice is commercially feasible, will not affect product efficiency, and is within the state of the
art at the time the product was placed in the stream of commerce”); [c]. Though not denominated
as such by our case law, this balancing of a possible safer alternative design against its commercial
feasibility is known as the

“risk-utility” approach to determining product defect. See 1 David G.

Owen & Mary J. Davis, Owen & Davis on Products Liability § 8:7 (4th ed. 2014). A risk-utility analysis
determines “[w]hether a particular design danger is ‘unreasonable’ (that is, ‘defective’)” by balancing
“ ‘the probability and seriousness of harm against the costs of taking precautions. Relevant factors
to be considered include the availability of alternative de signs, the cost and feasibility of adopting
alternative designs, and the frequency or infrequency of injury resulting from the design.’ ” Id.
At trial, both sides presented e
vidence

regarding alternative

roof designs and their commercial

feasibility, as McCourt and its progeny allow. Trejo affirmatively alleged that a safer alternative design
was available and presented expert testimony that the design was commercially reasonable. Ford
presented contradictory evidence, to the effect that Trejo’s expert’s proposed design was not, in fact,
safer and, further, created issues of commercial unreasonableness.
Based on this admitted evidence, Ford sought to have the jury instructed on alternative design by
adding the italicized language to the stock product-defect jury instruction:
[Proposed] Instruction No. 21
In order to establish a claim of strict liability for a defendant product, the plaintiff must prove the
following elements by a preponderance of the evidence:
1. That Ford Motor Company was the manufacturer of the 2000 Ford Excursion;
2. That the 2000 Ford Excursion’s roof structure was defectively designed;
3. That the defect existed when the 2000 Ford Excursion left Ford Motor Company’s possession;
*535 4. That the 2000 Ford Excursion was used in a manner which was reasonably foreseeable by
Ford Motor Company;
5. There existed a reasonable alternative design; and
6. That the defect was a proximate cause of the injury to Rafael Trejo.
(emphasis added to show proposed addition to Nevada Jury Instructions—Civil § 7PL.4 (2011)).
Ford also offered [Proposed] Instruction No. 22, as follows:
A product is defective in design when the foreseeable risks of harm posed by
the product could have be en reduced or avoided by the adoption of a reasonable
alternative de sign and the omission of the alternative design renders the product
not reasonably safe.
Although these requested instructions accurately stated Nevada law under McCourt, the district court
594 | Design Defects (Socratic Script)

rejected them. It also rejected every other jury instruction Ford proposed that touched on reasonable
2

alternate design. As a result, the jury received no instructions on how to apply the e vidence regarding
a safer alternative design and its commercial feasibility to determine whether the Excursion was
unreasonably dangerous due to a design defect.
The court gave only stock product liability instructions to the jury. Thus, the district court gave as
Instruction No. 19 what Ford had tendered as [Proposed] Instruction No. 21, minus the italicized
language about reasonable alternative design, reprinted supra at 3–4. It also gave, as the only other
guidance on how the jury should decide design defect, the following stock instructions:
Instruction No. 20
A product is defective in its design if, as a result of its design, the product is unreasonably
dangerous.
*536 Instruction No. 21
A product is unreasonably dangerous if it failed to perform in the manner reasonably to
be e xpected in light of its nature and intended function, and was more dangerous than
would be contemplated by the ordinary user having the ordinary knowledge available in the
community.
See Nevada Jury Instructions—Civil § 7PL.7 (2011). While the se instructions are accurate, they are
incomplete

and misle ading as a result. “[C]onsumers comprehend that automobiles are

not

completely crashproof, but they have no me aningful expectations as to the e xtent to which a vehicle
may be compromised in the e vent of a collision or rollover at substantial speeds.” 1 Owen & Davis,
supra, at § 8:5. The jury should have be en instructed on all of the law pertinent to the e vidence
presented, including alternative design.
The instructions the jury received failed to give them any guidance on how to utilize the ample e xpert
evidence presented over the course of the two-week trial regarding Trejo’s proffered alternative
design and Ford’s arguments that the alternative design was proven neither to be safer nor
commercially feasible. See Woosley v. State Farm Ins. Co., 117 Nev. 182, 188 (2001) (providing that it is
error for the court to refuse to give a jury “instruction when the law applies to the facts of the case”).
Indeed, with the instructions given to the jury, such evidence would not even factor into their decision
as to whether the Excursion was unreasonably dangerous as designed.

2. In addition to the instructions reprinted in the text, Ford proposed a “state of the art defense” instruction and, citing
Robinson v. G.G.C., Inc., 107 Nev. at 139–40, an instruction that would have told the jury as a minimal alternative that “[a]
manufacturer is not required to produce the safest design possible.” Both were refused, as was Ford’s additional
proposed instruction based on the Restatement (Third) section 2(b) that would have told the jury that, in assessing riskutility, to consider “(a) the likelihood that the product will cause injury considering the product as sold with any
instructions or warnings regarding its use; (b) the ability of the plaintiff to have avoided injury; (c) the plaintiff’s
awareness of the product’s dangers; (d) the usefulness of the product as designed as compared to a safe design; (e) the
functional and monetary cost of using the alternative design; and (f) the likely effect of liability for failure to adopt the
alternative design on the range of consumer choice among products.
Design Defects (Socratic Script) | 595

The refusal to give an instruction regarding the e vidence presented contravenes this court’s longheld tenet that “a party is entitled to have the jury instructed on all of [its] case the ories that are
supported by the e vidence.” [cc] While the majority recognizes that Nevada’s jurisprudence allows for
the presentation of risk-utility evidence in products liability cases (albeit as part of the consumerexpectation test), it disconcertingly concludes that there was no error in the district court’s failure to
3

instruct the jury regarding alternative design or risk-utility in this case. With this holding, it is unclear
whether the majority intends to *537 place limits on the use of risk-utility evidence in products
4

liability cases or intends to relax the requirement that district courts must instruct juries based on
the e vidence presented at trial, but what is clear is that this holding diverges from current Nevada law.
The failure to give the jury instructions that are supported by both this court’s prior jurisprudence and
the e vidence and ple adings presented by the parties constitutes reversible error because, had the jury
been instructed on the risk-utility test, the outcome of the case may have been different. Id.; [***].
This court encountered a similar jury instruction issue in Lewis v. Sea Ray Boats, Inc., 119 Nev. 100
(2003). In that case involving an allegation of an inadequate warning on a boat’s generator, a party
requested an instruction that would define “adequate warning” for the jury. Id. at 104–05. The court
5

refused to give the instruction and instead gave more generalized instructions. Id. at 105. On appeal,
this court held that the general instructions were insufficient to guide the jury both because jurors
had “to search their imaginations to test the adequacy of the warnings” and because , due to the e xpert
witness testimony given, the jurors were “entitled to more spe cific guidance” on the law governing the
case. Id. at 108.
The same reasoning should be applie d here: the more spe cific instructions provided greater guidance
to the jury and the district court’s failure to give those more spe cific instructions warrants a reversal
of the jury verdict and a remand for a new trial. [***]
Based on the foregoing, I would reverse and remand this matter for a new trial.

3. The majority characterizes Ford’s proposed jury instructions as asking the district court to overrule or change existing
Nevada law, something a district court cannot do. But this misreads the record and the law. Nevada has never rejected
feasible alternative design as an appropriate consideration in a design defect case. See McCourt, 103 Nev. at 102, and
Nevada cases cited, supra [c]. And, even in its proposed risk-utility instructions, Ford included consumer expectations as
a factor to be considered. Also unavailing is the majority’s suggestion that Ford somehow waived its right to have the
jury instructed on alternative feasible design. It requested the instructions; it objected to the failure to give them; and it
moved for a new trial based on instructional error. The law does not require more. See Johnson v. Egtedar, 112 Nev. 428,
434–35 (1996) (recognizing that if a court is “adequately apprised of the issue of law involved and was given an
opportunity to correct the error,” then a party has adequately reserved a jury instruction issue for appellate review).
4. If this is the majority’s intent, such a holding would place Nevada in the extreme minority of jurisdictions that do not
allow any evidence of risk-utility in design defect cases as is discussed more in depth in the next section. See Aaron D.
Twerski & James A. Henderson, Jr., Manufacturers’ Liability for Defective Product Designs: The Triumph of Risk–Utility, 74
Brook. L. Rev. 1061, 1104–05 (2009).
5. The proposed instruction provided that a warning must be designed to catch the attention of the consumer, give a fair
indication of the specific risks attributable to the product, and that the intensity of the warning match the danger being
warned against. Lewis, 119 Nev. at 105. In comparison, the given instruction merely provided that whether a warning was
legally sufficient depended upon the language used and its impression on the consumer. Id.
596 | Design Defects (Socratic Script)

The majority’s approval of jury instructions that focus on consumer expectations to the e xclusion
of risk-utility considerations not only contravenes preexisting Nevada law, it also makes Nevada an
outlier, as only a small minority of jurisdictions rely solely on consumer expectations in design defect
cases. See Twerski & Henderson, Manufacturers’ Liability for Defective Product Designs, 74 Brook. L.
Rev. at 1104–05 (stating that only Kansas, Nebraska, Oklahoma, Wisconsin, and possibly Maryland
solely apply a consumer-expectation test to design defect claims); but see Wis. Stat. Ann. § 895.047(1)(a)
(West 2015) (by statute adopte d in 2011, Wisconsin follows a risk-utility approach in design defect
cases). En route to this holding, the majority also mischaracterizes the risk-utility test as presented by
the Restatement (Third) and how it is applied.
Like Nevada (at least until today), most jurisdictions recognize that both consumer expectations
and feasible alternative design or risk-utility evidence have legitimate roles to play in design defect
cases. Feasible alternative design evidence plays a predominant role in design defect, as opposed
to manufacturing defect, cases because

of the

difference

in the

a manufacturing defect consists of a product unit’s failure

two types of claims: “Whereas

to me et the

manufacturer’s design

specifications, a product asserted to have a defective design meets the

manufacturer’s design

specifications but raises the question whether the specifications themselves create unreasonable
risk.” Restatement (Third) of Torts: Products Liability § 2 cmt. d.
Analyzing the manufacturer’s design choice cannot be done in a void, leading courts to strike a
balance be tween the consumer-expectation test and risk-utility test. California has created a test
*539 wherein consumer expectations are reserved for those cases where “everyday experience of the
product’s users permits a conclusion that the product’s design violated minimum safety assumptions,
and is thus defective regardless of expert opinion about the merits of the design.” [c]; see also Twerski &
Henderson, Manufacturers’ Liability for Defective Product Designs, 74 Brook. L. Rev. at 1098–1101 (listing
ten other jurisdictions that use the same approach as California). Thus, the jury [in those jurisdictions]
is exclusively instructed on risk-utility only when the evidence presented would not support a jury
verdict based on consumer expectations. [c] Illinois’ approach is to include consumer expectations as
a factor to consider under the risk-utility test when the evidence presented at trial implicates both
tests, with the alternative design criteria controlling in design defect cases. [c]
Even those jurisdictions that appear to exclusively adopt a risk-utility test for design defect cases
nevertheless recognize consumer expectations as a factor for consideration. Compare Gen. Motors
Corp. v. Jernigan, 883 So.2d 646, 662 (Ala. 2003) (holding that a safer alternative design is required in
design defect cases raised under Alabama’s Extended Manufacturer’s Liability Doctrine and cited by
the majority for the proposition that Alabama exclusively uses the risk-utility test), with Horn v. Fadal
Machining Ctrs., LLC, 972 So.2d 63, 70 (Ala. 2007) (providing that a claim unde r the same doctrine
can be won by showing the product failed to meet consumer expectations). See also Banks v. ICI
Americas, Inc., 264 Ga. 732 (1994) (listing factors relevant to a risk-utility analysis, which include “the
user’s knowledge of the product … as well as common knowledge and the e xpectation of danger”);
Wright v. Brooke Grp. Ltd., 652 N.W.2d 159, 170 (Iowa 2002) (“Although consumer expectations are not
the sole focus in evaluating the defectiveness of a product under the [Third] Products Restatement,
consumer expectations remain relevant in design defect cases.”); Nichols v. Union Underwear Co., 602
S.W.2d 429, 432–33 (Ky. 1980) (holding that consumer expectations is a factor to be considered in a
Design Defects (Socratic Script) | 597

design defect case, along with other risk-utility factors); Williams v. Bennett, 921 So.2d 1269, 1275 (Miss.
2006) (quoting Clark v. Brass Eagle, Inc., 866 So.2d 456, 460 (Miss. 2004), with approval and Clark
notes that Mississippi’s products liability law is a hybrid of the consumer-expectation test and the
risk-utility test); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 335–37 (Tex. 1998) (refusing
to adopt a new rule of law regarding design defect and recognizing that the risk-utility test includes
consideration of the consumer’s expectations of the product). The Restatement (Third) also provides
a comprehensive analysis of this issue, concluding that the risk-utility analysis should predominate
in design defect cases but *540 still include consideration of consumers’ expectations. Restatement
(Third) of Torts: Products Liability § 2 & cmt. f.
The varied foregoing approaches to incorporating both the consumer-expectations test and the riskutility test into design defect cases demonstrate the difficulty presented by this issue. The fact that
the task is difficult or that there may be more than one possible solution, however, does not justify the
majority’s decision to exclude all references to risk-utility evidence in the instructions given to the
jury.
The

majority gives a series of reasons for rejecting the

risk-utility approach offered by the

Restatement (Third). On the surface, the concerns seem legitimate but, at their core, they rest on a
fundamental misunderstanding of what the Restatement (Third) actually proposes in design defect
cases.
First, the majority asserts that by requiring evidence of a feasible alternative design prior to the
discovery process, the risk-utility test places a “prohibitive barrier” to a plaintiff bringing a case,
especially since

the

de fendant controls the

information related to product design. [c] But the

Restatement’s feasible alternative design provision relates to proof at trial, after discovery, and
specifically “assume[s] that the plaintiff will have the opportunity to conduct reasonable discovery
so as to ascertain whether an alternative design is practical.” Restatement (Third) of Torts: Products
Liability § 2 cmt. f. Thus, the feasible alternative design requirement is not a mandatory prerequisite
to filing a design defect claim under the Restatement (Third).
Second, the majority criticizes the Restatement (Third) as failing to recognize that proof of a feasible
alternative de sign should not be required in every design defect case, especially those where no
feasible alternative design exists. [c] But again, the Restatement (Third) does not propose the rule the
majority criticizes. On the contrary, the Restatement makes specific provision for design defect claims
that do not require feasible alternative design evidence. For example, if the product is manifestly
unreasonable, or it has little social use and a high degree of danger, a court may declare it to be
defective in design without evidence of a feasible alternative design. See Restatement (Third) of Torts:
Products Liability § 2 cmt. e (using the e xample of a child’s pellet gun that uses pellets hard enough to
cause injury).
Going beyond the comments to section 2, section 3 of the Restatement (Third) provides for imposition
of strict liability without regard to alternative design in cases involving inexplicable

product

malfunction. Restatement (Third) of Torts: Products Liability § 3 *541 [***] This section comports
with Nevada product liability law. Indeed, the Reporter’s Note to se ction 3, cmt. b, of the Restatement
(Third) quotes with approval this court’s holding in Stackiewicz v. Nissan Motor Corp. in U.S.A., 100
598 | Design Defects (Socratic Script)

Nev. 443, 448 (1984), “that proof of an unexpected, dangerous malfunction may suffice to establish a
prima facie case for the plaintiff of the existence of a product defect.” [***]
In sum, the majority’s suggestion that the Restatement (Third) requires proof of alternative design in
all design defect cases is simply incorrect. There are numerous instances wherein a plaintiff could
succeed on a design defect claim without providing evidence of a feasible alternative design.
The error in the

instructions require
s reversal and remand for a new trial. By affirming the

instructions the jury was given, the majority has moved Nevada from the mainstream—where courts
and commentators alike are striving to strike the proper balance be tween risk-utility and consumerexpectations analyses in design defect cases—to a minority of three or four jurisdictions that rely
solely on consumer expectations. While I do not ne cessarily advocate for the Restatement (Third) over
the approaches variously taken by California or Illinois, Nevada should at a minimum adhere to its
prior case law recognizing that feasible alternative design has a legitimate and important role to play
in design defect cases. As the complete elimination of feasible alternative design from the designdefect calculus is unsound, I respectfully dissent.
Note 1. The Role of the Jury. Trejo reflects the e xtensive process that can take place when the
parties seek to finalize jury instructions before a trial. The y may fight about the language of a single
instruction or dispute the le gal accuracy of one or more instructions as they are “settling instructions,”
as the court puts it. In general, jury decision making is like a “black box” in that we do not know
what led to their decisions or how they arrived at particular numbers, other than by comparing final
verdicts with what parties requested or argued. However, in certain cases, the parties may propose
use of a “special verdict” form in which the jury is asked to answer a number of questions or to provide
answers regarding amounts of damages. In Trejo, the jury was asked to answer (1) whether the 2000
Ford Excursion’s roof was defective in design, and, if so, (2) whether the 2000 Ford Excursion’s roof
design defect was a proximate cause of Rafael Trejo’s death. Judges are very reluctant to set aside a
jury verdict once it has been issued. To do so usually requires that it be “against the weight of the
evidence.” With a general verdict—one in which a jury is asked just whether a party is liable or guilty
or not—the parties may struggle on appe al since there is little to which to attach criticism of the jury’s
verdict. Unlike judicial opinions, which contain precedents and other authorities as well as rationales
and reasoning to critique, jury verdicts do not provide their analysis for subsequent parties to review.
This places additional pressure on the wording and nature of the jury instructions. Appellate review
of the accuracy and propriety of jury instructions is a question of law subject to the de novo standard
of review. While “harmless errors” will not provide grounds for reversal, judges do have considerably
more latitude to find errors exist with respect to jury instructions versus their much more limited
ability to disturb jury verdicts. Consider why you might wish to use a spe cial verdict, or not to use one,
if you were involved in litigation. What factors might shape your thinking?
Fewer and fewer cases make it all the way to a jury in civil litigation in our era; the institution has been
referred to as “the vanishing jury” and “the disappe aring jury,” for instance. This change is partly a
function of changes to motion practice and partly reflective of the rise of administrative me chanisms
for resolving claims in a fashion that permits parties to end disputes more ine xpensively and quickly.
In addition, insurance companies played a larger and larger role in tort law over the course of the
20

th

century, which mean both that efficiency drove de cision making and individual claims could be
Design Defects (Socratic Script) | 599

more e asily handled at scale. Yet many of the cases you read feature a fight over the jury, or jury
instructions. Lawyers researching prior case law and students learning the law read many cases in
which the jury plays a prominent role. Is the fixation on the jury a relic? Or is it purely symbolic, given
the dropping rates at which trials are statistically likely to feature them? One the ory of the jury’s role is
that it scares both parties into settling more readily since juries are thought to be more unpredictable.
Another theory of the jury function is that it humanizes and democratizes the law, however, and that
its role remains critical, if diminished by number of cases, in our legal regime. If tort law seeks to
determine what is “reasonable” under the circumstances, doesn’t it still need the jury?
Note 2. State of the Art Defense. The court mentions that Ford requested a “state of the art defense”
(and was refused). This is an affirmative defense recognized judicially or legislatively in a number of
jurisdictions which permits defendant manufacturers to assert that they behaved according to the
best available knowledge at the time. In other words, their theory of non-liability is that they could
not have known about the hazard when they made or sold their product because the state of the art
at that time had not yet discovered particular risks. As you can see, there may be overlap between the
evidence required to show the feasibility of a reasonable alternative de sign and the e vidence required
to prove up the state of the art defense. Who should be taxed with offering this kind of evidence, in
your view, the plaintiff or the defendant?
Note 3. In the unabridged version of Ford v. Trejo, the court cites to a Wisconsin case that held that
the consumer expectations test “does not inevitably require any degree of scientific understanding
about the product itself. Rather, it requires understanding of how safely the ordinary consumer
would expect the product to serve its intended purpose.” (p. *528 citing Green v. Smith & Nephew
AHP, Inc., 245 Wis.2d 772 (2001)). Ford argued that it was “extremely unlikely that the Trejos bought
their Excursion with any specific expectation regarding the strength-to-weight ratio of the vehicle
roof.” Ultimately, the court disregard Ford’s argument and ruled that Trejo had presented sufficient
evidence for the jury to conclude that the le vel of protection actually provided by the roof in a rollover
accident was less than would be e xpected by a reasonable consumer. The court stated that, in this
case, the distinction between the risk-utility and consumer expectation tests was immaterial. But was
Ford’s argument the right one, in any event? Do you think that the consumer expectations test asks
jurors to determine whether a reasonable consumer would investigate and form expectations about
the strength-to-weight ratios of vehicles? What alternative framings can you articulate for what the
consumer expectations test would ask in this case?

Expand On Your Understanding – Socratic Script: Ford Motor Company v. Trejo

Question 1. What is the holding of this case?

600 | Design Defects (Socratic Script)

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=87#h5p-102

Question 2. What’s the difference between the majority and dissenting opinions’ views of the proper use
of alternative design evidence?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=87#h5p-103

Question 3. What is California’s test, according to Ford v. Trejo? Try to put it in your own words; the
answer rather than quoting directly from the case; articulating the test for yourself will then allow you to
use the answer, which quotes directly from the case, to test your active (rather than merely passive)
understanding.

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=87#h5p-104

Question 4. What do you think are the effects of the California test?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=87#h5p-105

Question 5. The court refers to the distinction between focusing on the conduct of the manufacturer in
designing and developing, rather than the product itself, and states that focusing on the manufacturer’s
conduct is in “direct conflict with the reasoning of this court in Shoshone and its progeny.” What is the
significance of this distinction between conduct and product? What is the conflict the court alludes to,
concerning Shoshone (which was the case about the decomposing mouse in the bottle of Squirt
mentioned in the majority opinion)?

Design Defects (Socratic Script) | 601

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=87#h5p-106

Question 6. In its discussion of Shoshone, the court reaffirms its commitment to the application of strict
liability, even when there is no evidence of fault and the injured party is not in a contract with the
defendant, so long as “a manufacturer has placed a dangerous or defective product into the stream of
commerce.” Applying the logic of Thomas v. Winchester, how would you formulate a rationale for the
court’s statement?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=87#h5p-107

Question 7. How significant do you think it is that the vehicle did not meet Ford’s own internal guidelines
for roof strength? Can you think of reasons why it should or should not matter to the determination?

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=87#h5p-108

Defective Instructions or Warnings
Shinedling v. Sunbeam Products, Inc., U.S. Dist. Court, C.D. Cal. (2014)
(2014 WL 12589646)(not reported)
This is a products liability action arising from the de ath of Amy Celeste Shinedling in a house fire on
January 5, 2011. Ms. Shinedling’s surviving husband, Kenneth Shinedling, brought this action on behalf
of himself and as Guardian ad Litem for their surviving children (collectively, “Plaintiffs”) on December
15, 2011. Plaintiffs’ remaining claims assert strict products liability and negligence against Defendant
602 | Design Defects (Socratic Script)

Sunbeam Products, Inc., (“Sunbeam”), the manufacturer of the portable space he ater that allegedly
caused the house fire. [c] Plaintiffs allege that the he ater caused the fire be cause it was defectively
designed, contained a manufacturing defect, and failed to include ade quate warnings. Before the
Court is Sunbeam’s motion for partial summary judgment as to Plaintiffs’ manufacturing defect and
failure-to-warn bases for their strict products liability and negligence claims. [fn]
The

product at issue

is the

Holmes Quartz Heater, Model HQH307, manufactured in 2006 (the

“Heater”). [fn] The Heater is a type of portable electric heater known as a radiant quartz heater. As
opposed to ceramic or convection-type he aters, which blow hot air to heat an entire space, radiant
heaters radiate infrared heat that directly heats solid objects in its path. The Heater is sold with an
instructional leaflet with a number of warnings, including:
“When using electrical appliances, basic safety precautions should always be followed to reduce
the risk of fire, electric shock, and injury to persons, including the following: … 3. This heater is
hot when in use. To avoid burns, do not let bare skin touch hot surfaces. If provided, use handles
when moving this heater. Keep combustible materials, such as furniture, pillows, bedding,
paper, clothes, and curtains at least 3 feet (0.9 m) from the front of the he ater and keep them
away from the sides and rear.”
A similar warning regarding keeping materials 3 feet away was displayed on the Heater’s power cord
and on the body of the Heater itself. The instructional leaflet provided with the Heater also describes
the Heater’s “Auto Safety Shut-Off” feature. The description states:
“The he ater is equipped with a patented, technologically-advanced safety system that requires
the user to reset the he ater if there is a potential overheat situation. When a potential overheat
temperature is reached, the system will automatically shut the heater off.”
*2 The night of January 4, 2011, Mr. and Mrs. Shinedling went to sleep with the Heater and another
space he ater in operation in the master bedroom of their home. At the time Mr. Shinedling went to
sleep there were no clothes or combustible materials within 3 feet of the Heater. In the e arly morning
hours, Mr. Shinedling awoke to the sound of a smoke alarm. He got up and saw clothes in front of the
Heater which had caught fire, along with the Heater itself. His wife told him to get the children out
of the house , which he did, and the n he called 911. Mr. Shinedling attempted to reente r the home to
locate his wife but the fire had grown too intense. Mrs. Shinedling died in the fire.
[***] *3 Under California law, “ ‘[a] manufacturer is strictly liable in tort when an article he places
on the market, knowing that it is to be use d without inspection for defects, proves to have a defect
that causes injury to a human being.’ ” [c]. [***] Sunbeam’s motion for partial summary judgment is
limited to Plaintiffs’ manufacturing defect and warning defect theories only. The Court will address
these theories in turn.
a. Manufacturing Defect
[***] (“[A] product has a manufacturing defect if the product as manufactured does not conform to
the manufacturer’s design.”). “[T]o establish liability, it is not enough that the action happened, nor

Design Defects (Socratic Script) | 603

may liability inferences favorable to plaintiff be drawn from that fact. The plaintiff must prove by
competent evidence that the product was [defective in manufacture].” [c]
Plaintiffs have not introduced sufficient evidence to create a ge nuine dispute that the Heater in
question contained a manufacturing defect. Plaintiffs concede that they have no direct evidence of
any manufacturing defect. Instead, Plaintiffs rely on Vandermark v. Ford Motor Co., 61 Cal. 2d 256,
260 (1964), and Elmore v. American Motors Corp., 70 Cal. 2d 578 (1969), to argue that circumstantial
evidence

may suffice

to prove

the

e xistence

of a manufacturing defect where

the

product was

destroyed in the incident at issue. The circumstantial evidence that, according to Plaintiffs, creates a
ge nuine dispute that the Heater had a manufacturing defect includes: there is no e vidence that the
Heater was modified after it left Sunbeam’s possession; “there are historical reports of the bottom
of this type of heater burning and melting and starting fires, as verified by Sunbeam”; Mr. Shinedling
testified that he saw the Heater itself on fire in addition to the clothes surrounding the Heater; a
failure of an internal connection could potentially start a fire; such a failure could have produced a fire
burning at the same temperature as the fire at issue; the carpet underneath the Heater was burned;
and the point of origin of the fire was determined to be at or near the Heater’s location.
Plaintiffs’ circumstantial evidence is too spe culative to proceed before a jury on the issue of whether
the Heater contained a manufacturing defect. The cases Plaintiffs rely on for the proposition that the
existence of a defect can be established by circumstantial evidence all involved at least some evidence
from which an inference of a defect could be drawn. Elmore, for instance, was a products liability
action arising from a car accident that occurred because a part detached from the bottom of the
plaintiff’s car and dragged on the cement, causing her to lose control and crash. [c] The plaintiff’s
evidence include d expert testimony that the vehicle’s drive shaft detached prior to the accident, the
cause of the drive shaft detaching was loose fastenings or metal failure, and a drive shaft would not
detach because of normal wear and tear, the forces of the subse quent accident, or “anything the driver
did.” [c] The e xpert testified that it was his opinion that the drive shaft connection was defective.
In contrast, Plaintiffs’ own expert on the issue of manufacturing defect cannot conclude that the
Heater contained a manufacturing defect. Plaintiffs’ expert merely states that he could not rule out
the possibility of a manufacturing defect. (“[T]he possibility that extreme heat was generated at that
connection leading to ignition of the he ater from the inside could be neither confirmed nor refuted.”).)
Further, Plaintiffs concede that their “origin and cause” expert, as well as Sunbeam’s experts, all agree
that “it is more likely than not that the cause of the fire was the ignition of the clothing by the he ater.”
Sunbeam is entitled to partial summary judgment as to the manufacturing defect basis for Plaintiffs’
6

strict liability claim.

6. The relevant evidence Plaintiffs submit in support of their assertion that “there are historical reports of the bottom of
this type of heater burning and melting and starting fires” consists of two customer complaints involving the same or
similar heaters in the time period from 2004 to 2014 which reported failure of internal wiring that burned through the
bottom of the heater. Internal wire failures that result in fires, according to Plaintiffs’ expert, are “typically the result of a
poor electrical contact due to improper assembly of the connection.” Notably, Plaintiffs’ expert found that the customer
complaints contained “insufficient information ... to perform an independent analysis, so the comments within the
summary are not intended to reflect conclusions,” and based on the information available to him, “it is impractical to
make an independent determination of cause with specificity for any of the reported incidents.” Even taking the
604 | Design Defects (Socratic Script)

b. Failure to Warn
*4 To prevail on a failure-to-warn theory, the

plaintiff must show that the defendant “did not

adequately warn of a particular risk that was known or knowable in light of the generally recognized
and prevailing best scientific and medical knowledge

available

at the

time

of manufacture

and

distribution.” [c] (“[A] product, although faultlessly made, may nevertheless be deemed ‘defective’
unde r the rule and subje ct the supplier thereof to strict liability if it is unreasonably dangerous to
place the product in the hands of a user without a suitable warning and the product is supplied
and no warning is given.”) California courts have identified several factors pertinent to determining
the ade quacy of warnings, including the risk of harm and magnitude of potential harm the product
presents, the

normal e xpectations of the

consumer as to how the

product will perform, how

complicated it is to use the product, and the feasibility and beneficial effect of a warning. [c] The
adequacy of the warnings provided with a product is generally a question of fact for the jury. [c]
Genuine disputed issues regarding the ade quacy of the Heater’s warnings preclude partial summary
judgment on Plaintiffs’ failure-to-warn theory. These issues include, among others, whether the
warnings were inade quate be cause the y failed to advise the user that the Heater should never be left
on while sle eping. A bulletin published by the U.S. Consumer Products Safety Commission regarding
portable electric heater fires between 2008 and 2010 included safety warnings which, in addition
to warning consumers to keep materials at least 3 feet away from heaters, also warned consumers
“[n]ever leave the heater operating while unattended, or while you are sleeping.”
A triable issue also e xists as to Plaintiffs’ contention that additional warnings should have be en given
regarding the Heater’s Auto Safety Shut-Off feature. Sunbeam argues that this feature was intended to
address potential overheat temperatures occurring inside the Heater only. A reasonable jury, however,
could find that, in light of the representation in the Heater leaflet that “[w]hen a potential overheat
temperature is reached, the system will automatically shut the he ater off” and the risk of danger
and magnitude of harm a space he ater could cause, the lack of additional warnings made the Heater
defective. Nor does the fact that Mr. Shinedling testified at deposition that he read and understand the
warning to keep materials 3 feet away from the Heater preclude a jury determination as to whether
additional warnings were necessary under these circumstances.
c. Negligence
Sunbeam also moves for partial summary judgment on Plaintiffs’ negligence claim to the e xtent it
relies on manufacturing defect or warning defect theories. Negligent products liability, like strict
liability, requires proof that a defect in the product caused the plaintiff’s injury. [c] A negligence claim
requires the additional element that the defect in the product was due to the de fendant’s negligence.
Sunbeam is entitled to partial summary judgment on Plaintiffs’ negligence claim to the e xtent that it is
premised on a manufacturing defect in the Heater, for the same reasons discussed in connection with

evidence in the light most favorable to Plaintiffs, it would be too speculative to say that these isolated reports of firecausing internal wire failure in other heaters over a 10-year period create a triable issue that the Shinedlings’ heater
contained an internal wiring defect that existed because of a manufacturing error, and that failure of this defective
internal wiring substantially caused the fire at issue.
Design Defects (Socratic Script) | 605

strict liability above. Sunbeam has not shown that summary judgment is warranted as to Plaintiffs’
negligent warning defect theory.
For the

foregoing reasons, the

Court GRANTS IN PART Sunbeam’s motion for partial summary

judgment.
Note 1. Why did the court find that the plaintiffs had failed to make out a manufacturing defect? What
might have made a difference, in your view?
Note 2. What was the significance of the plaintiffs’ assertion that the he ater had not been modified
after it left Sunbeam’s possession?
Note 3. A manufacturer may be liable for a failure to warn if they “did not adequately warn of a
particular risk that was known or knowable in light of the generally recognized and prevailing best
scientific and medical knowledge available at the time of manufacture and distribution” (emphasis
added). What does it mean for a risk to be “known or knowable”? What standard or standards of
conduct does the phrase reflect, and why do you think the range exists?
Note 4. What factors, in combination, caused the court to allow the case to proceed on a theory of
failure to warn? What standard (objective or subje ctive) did the court’s reasoning reflect? Why did it
not seem to matter that Mr. Shinedling testified that he had unde rstand the warning to keep materials
3 feet away from the he ater? You may recall Garrison v. Deschutes (Sup. Ct. Or. 2002)) from Module
3, Causation, in which the court found there was no liability for Deschutes County’s failure to warn
of risk of falling due to the lack of any barrier guarding the drop-off at the Fryrear transfer station
given that Garrison and his wife admitted knowing of the danger). Is this case distinguishable, in your
opinion? If so, what makes it so?
Note 5. The Malleability of The “Unreasonably Dangerous” Standard. California rejected the
Restatement § 402A’s approach to “unreasonably dangerous” products, but given that the majority of
jurisdictions have chosen to retain it in some fashion, how are “unreasonably dangerous” products
defined? Many accidents occur each year in connection with ladders, lawn mowers, and swimming
pools. Significant injuries and death continue to result from gun ownership and tobacco use (which
also causes substantial disease in users and those in their households). But all—from ladders through
tobacco—are indisputably prevalent features of American life. Should all products that are classified
as “inherently dangerous” in some way be treated differently under tort law? For instance, what
warnings should manufacturers (and sellers) be required to provide for products like cigarettes?
Alcohol? Vapes? Cannabis-infused products? How about products that include butter, as an ingredient
traced to heart disease? Sugary sodas and fatty foods? Should products associated with significant
dangerous allergies be required to carry warnings?
There are doctrinal and pragmatic answers to these questions. Doctrinally, once significant risks
become foreseeable (“known or knowable,” to be more precise), a failure to warn can lead to liability
but usually requires that the risk be general enough to be of common application. If a tiny percentage
of the population has a rare allergy to some component of a product, the risk may not be enough to
create a duty to warn. The sufferer of this rare allergy is almost certainly on notice that they must take
extra precautions. But the greater the prevalence of the risk, the greater the likelihood that the duty
606 | Design Defects (Socratic Script)

will arise. Pragmatically, the answer is partly a function of political power; products with powerful
industry organizations can and do lobby for favorable legislation that may immunize or limit their
likely liability, regardless of the danger of their products.

Check Your Understanding – Set 36

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=87#h5p-109

Expand On Your Understanding – Stinky Raw Cheese Hypothetical

Practice Applying Rules From Prior Cases
A local farmer’s market that runs every Saturday morning features a business, Fox Farms, which sells
stinky fresh cheese made on their farm. Some of their cheeses are unpasteurized, which their customers
love. It is difficult to find stinky unpasteurized cheeses in stores since they carry the risk of harboring e.
coli, salmonella, listeria, and other pathogens that can cause vomiting, diarrhea and other serious
gastrointestinal complications. Pregnant women, for instance, are advised to avoid unpasteurized food
entirely. Fox Farms’ clients seek this farm’s cheeses out specially and they run out well before the end of
the market every week. The farm maintains a chalkboard that lists its selections and most weeks, one of
the employees writes UNPASTEURIZED at the top of the board and marks which cheeses are
unpasteurized. In smaller print, there was a warning about the health hazards of eating such cheeses.
There was one line that specifically said “We recommend that PREGNANT WOMAN avoid these
cheeses!” On a recent Saturday, there was a new employee who forgot to write the warning on the board
and thus list which cheeses were unpasteurized. In at least a few cases, he remembers verbally telling
customers that the cheeses they were selecting were unpasteurized but he concedes that he cannot
recall, in all cases, whether he did so. The farm discovered its first-ever e. coli outbreak and diligently
began trying to trace its steps to minimize the possible harm but the damage was done and several
customers were made violently ill, including one pregnant woman, who died as a result. (The employee
who had forgotten to warn felt terrible upon learning that some people were unaware of the risk. He was
otherwise a very careful and responsible individual.)
For the following hypotheticals, consider whether the plaintiffs are likely to recover. Each is designed to
trigger the application of a rule from a case you have read. (If the facts look completely unfamiliar, this

Design Defects (Socratic Script) | 607

exercise may either serve as a helpful review or may indicate a case that your professor has not
assigned; don’t worry about it too much either way. These exercises are meant to teach and reinforce as
much as they “review what you already know.”) As a side note, in the real world, layers of regulation may
apply to safeguard food sources (and certain immunities may also exist); for our purposes, focus only on
the principles of law you have learned in this course. Turn each card to reveal the answer.

An interactive H5P element has been excluded from this version of the text. You can view it online
here:
http://saidtorts.lawbooks.cali.org/?p=87#h5p-110

608 | Design Defects (Socratic Script)

31. Defenses to Products Liability
Various defenses limit the scope of potential liability for injuries caused in connection with defective
products. The most common doctrinal defenses are probably misuse and modification. In addition to
having to prove some form of defect (or alternatively, breach of either warranty or due care), plaintiffs
must ofte n be able to show that they did not misuse a product. If a plaintiff suffers injuries when
trying to use a car as a boat, for instance, the fault lies with the plaintiff, not the defendant for failing to
anticipate such a use. However, some uses are so common that they have be come foreseeable e ven if
they are not the intended use for the product. For instance, a chair is meant to be sat on, not climbed.
Yet it has long been treated as foreseeable that a chair will be use d as a stepstool in lieu of a ladder,
for reaching higher-up items. It would not be a misuse for someone to use a chair in such a way in
their home. There may be a duty to anticipate foreseeable misuses, in other words. Plaintiffs may also
need to be able to show the product has not been modified since le aving the defendant’s control.
This may require proof that the plaintiff has not altered the product or that there was no intervening
third-party force that could constitute a superseding cause and sever the chain of causation.
In some instances, courts will use duty to limit defendants’ liability, as when the risks associated
with a product are open and obvious. Consider the case of aboveground pools, which are swimming
pools that rise above ground level rather than being dug into a corre sponding hole in the ground.
In the 1980s, the pool construction industry found itself targeted in multiple lawsuits over spinal
injuries suffered by people who dived headfirst into these structures. Unlike most other bodies of
water, including in-ground swimming pools, the depth—or more accurately, the shallowness—of an
aboveground pool is plainly discernible to tort law’s “reasonable person.” The general rule is that there
is no duty to warn of open and obvious dangers, so as long as the defendant can prove that the danger
was indeed open and obvious, duty analysis may eliminate their liability.
Is what is “open and obvious” the same for all people? If warnings express a risk well enough that
many or most people understand and can choose whe ther to avoid it, is that good enough or should a
warning make risks patently clear to all foreseeable users?
Recent Controversy. In 2021, a young woman, Tessica Brown, apparently ran out of her regular
hair product, “Got2Be Glue d” and used Gorilla Glue adhesive spray to set her hair instead.
When she was unable to remove it for a month, she poste d a video online se eking help. The
video went viral; it was viewed over 4.7 million times (as of 6/29/2021). Brown did receive
advice and some offers of help though she also was subject to some criticism for using the glue
in this way. A report that she was contemplating litigation against the manufacturer of Gorilla
Glue turne d out to false, but at least two personal injury attorneys believed Brown had a
claim that could survive the ple ading stage had she de cided to sue. https://www.insider.com/
tessica-brown-gorilla-glue-hair-lawyers-weigh-in-2021-2
Presumably, Gorilla Glue’s purported liability would be base d on a failure to warn since the
company “says do not use on e yes, skin or clothing … with no mention of hair.” What do you
think? Is it “open and obvious” that glue should not be use d on hair? Are you familiar with
Defenses to Products Liability | 609

Got2Be Glue d and its uses on hair? Would it matter to you if a subset of the population—mainly
women of color—used a product that included glue-like

characteristics? Consider the

following excerpt of an article about using that product:
“Got2b glued is a “water-resistant” hair styling/spiking gel from the

brand

Schwarzkopf. Schwarzkopf is a professional brand of hair care products. The Got2b
glued gel is the newest trend of securing wig and frontal units. … Got2b glued comes in
a white (regular) or clear (ultra hold) form. Both products boast water-resistant claims
of a screaming hold. Still not following me? That’s okay. What these users are doing,
including myself, is applying a thin layer of the gel to whatever area they want their
lace wig to be applie d to. Once the gel has dried to a tacky consistency, the lace wig is
then applied for a strong glue-like hold! Awesome, right? Well, maybe not so awesome
for some. I have come across reports of lack of hold, difficulty removing, and hair loss
as a result of this product.” https://thecrissymack.com/2017/04/13/7-things-theydidnt-tell-you-about-got2b-glued-for-your-lace-wig/
Does Brown’s use of Gorilla Glue se em different in light of the e xistence of this other product
and this trend in hair care? Does Gorilla Glue have a responsibility to anticipate foreseeable
misuses even with respect to trends? Or should a risk like e xtra-strong glue’s remaining
adhered to hair be considered “open and obvious”? How might tort law’s purposes guide your
considerations?
Certain categories of actors have be en immunized from liability in connection with injuries caused
by products liability. Pharmaceutical and medical device manufacturers are protected by the learned
intermediary doctrine, which holds that the “le arned intermediary” who interacts with patients
or consumers of the product is the one responsible for warning them of the products’ risks. The
manufacturers owe a duty to warn the le arned intermediary appropriately, but from that point,
their liability is extinguished. A general exception for oral contraceptives has been recognized in
light of the fact that consumers may not consult as meaningfully with a doctor in that medical
context as in almost every other. The doctrine has be en adopted in most U.S. jurisdictions, though
it is subject to multiple critiques. Pharmaceutical companies often market directly to consumers,
which would seem to eliminate the role of a learned intermediary. Physicians may enter consulting
arrangements or otherwise accept compensation from pharmaceutical companies, which has also
subjected the doctrine to criticisms of potential conflicts of interest. Notwithstanding these critiques,
efforts among representative
s of the

plaintiffs’ bar to create

“direct to consumer” or “physician

compensation” exceptions have faile d to gain much traction. See e.g. DiBartolo v. Abbott Labs., 2012 WL
6681704 (S.D.N.Y. Dec.21, 2012); Calisi v. Abbott Labs., 2013 WL 5462274 (D. Mass. Feb. 25, 2013).
Victims of injury are typically immunized from suit by first responders, fire fighters and professional
rescuers (see Module 3, discussion of the “Firefighter’s rule” in connection with Clinkscales v. Nelson
Securities, (697 N.W.2d 836) (Sup. Ct. Iowa) (2005). However, this limitation does not apply to claims by
professional rescuers against manufacturers or sellers of equipment or uniforms, so this is an area in
which an ordinarily available defense becomes unavailable in the context of products liability.
Finally, as with other torts claims, product liability actions may be subje ct to statutes of limitation
610 | Defenses to Products Liability

and repose (see Module 4). The ne xt case provides an opportunity to synthesize the various theories
of product liability in a case concerning a toxin that caused respiratory disease (“popcorn lung”) due
to its widespread use in microwave popcorn.

Daughetee v. Chr. Hansen Inc., U.S. District Court Iowa, Western
Division (2013)
(960 F. Supp.2d 849)
This case brings to mind the idiom, “Too much of a good thing can be bad for you.” In this diversity
action under Iowa products liability law, plaintiffs allege that Deborah Daughetee de veloped “popcorn
lung” by consuming multiple bags of microwave popcorn daily for several years. Presently, I am asked
to determine whether the plaintiffs are entitled to present to a jury both their failure to warn and
design defects. *853 [***]
Plaintiffs Deborah Daughetee and Steven Daughetee are marrie d and residing in Albuquerque, New
Mexico. [***] Symrise, Firmenich, and Hansen (collectively “defendants”) all produced butter
flavorings containing diacetyl. [***] Defendants sold their butter flavorings to microwave popcorn
manufacturers, including ConAgra, General Mills, and American Popcorn. General Mills and ConAgra
have be en aware, since the 1990s’s, that defendants’ butter flavorings contained diacetyl. ConAgra
is the largest manufacturer of microwave popcorn in the United States. It operates five microwave
popcorn factories and has been in the microwave popcorn business since the 1980’s. Diacetyl is
a basic food chemical present in all cheeses and butters. It is an ingredient used to manufacture
butter flavorings. Diacetyl is one of a number of potentially volatile organic compounds present in
butter flavorings. Butter flavorings are intended to provide “buttery” taste and smell. Upon opening a
microwave popcorn bag with butter flavoring, diacetyl vapors are released.
Between 1989 and 2004, Deborah regularly ate microwave popcorn. From 1989 to 2004, she prepared
and consumed approximately one or two bags of microwave popcorn each day. Deborah prepared a
“Product Identification” Sheet (“Product ID Sheet”) in which she identified the brands of microwave
popcorn she has e aten since 1989 [including] various brands manufactured by General Mills, ConAgra,
and American Popcorn. [***]
After removing a bag of butter flavored microwave popcorn from the microwave, Deborah would open
the bag and draw the buttery smell into he r nose and lungs. She “liked the smell of opening a bag
near my face,” and liked the taste of butter flavored, microwave popcorn. Deborah first ate microwave
popcorn in 1989 while working as a writer for the television show “Tour of Duty.” She prepared and ate
two bags of microwave popcorn while she worked on Tour of Duty. Typically, she would eat one bag
at the office and then take another bag home with her.
[The court reviews the facts in granular detail: plaintiff was able to link certain kinds of popcorn she
ate while working on certain shows, during certain time frames and purchased from certain stores
(for example, Costco, where particular brands could be identified).
Defenses to Products Liability | 611

Deborah stopped eating popcorn in 2004 because she grew tired of it.
[The

court conducts an extensive

survey of the

industry’s actions and knowledge, including its

industry-wide self-regulation mechanisms and safety protocols, the practices and state of knowledge
of the various defendants with respect to the risks associated with diacetyl, and the actions of various
entities that discovered that plant workers were de veloping lung issues and did not take responsible
actions to curb the risk or inform relevant parties and partners.] [***]
[D]efendants make three arguments in support of their claim that they had no duty to warn Deborah
about the harms allegedly associated with exposure to their butter flavorings. First, defendants
contend that they did not owe Deborah a duty to warn because , during the time that Deborah ate
microwave popcorn containing their flavorings, it was not reasonably foreseeable that their flavorings
posed a risk to consumers. Second, defendants assert that, because General Mills and ConAgra were
sophisticated users of flavoring products, General Mills and ConAgra were in a be tter position to warn
consumers about their products. Finally, defendants argue that they were bulk suppliers of flavorings
ingredients and were not in a position to warn consumers of General Mills and ConAgra’s microwave
popcorn about the dangers associated with the finished popcorn products. [***]
Under Iowa law, “[a] claim alleging a manufacturer failed to warn of the dangers involved in using
a product is properly based on a theory of negligence, not strict liability.” [***] *865 Defendants, as
manufacturers, are held to have the knowledge of an expert and therefore should have known of
the hazards inherent in their products. “The relevant inquiry therefore is whe ther the reasonable
manufacturer knew or should have known of the danger, in light of the generally recognized and
prevailing best scientific knowledge yet failed to provide ade quate warning to users or consumers.”
[c] Thus, reasonable foreseeability of danger to users of a product triggers the duty to warn. A
manufacturer has no duty to warn when it did not or should not have known of the danger. [c]
Defendants argue

that there

was no scientific or medical knowledge

at the

time

De borah was

consuming microwave popcorn with butter flavorings which would have given them a reasonable
basis to believe their product could cause

injuries to consumers. The Daughetee
s counter that

defendants had knowledge of the hazards associated with their butter flavorings, at least at some
level, or that knowledge was ascertainable prior to and during Deborah’s exposure. [***]
[Editor’s summary: The court then details information available through the flavor industry’s
trade organization, FEMA, including a warning in 1985 that diacetyl was “harmful” and high
concentrations were “capable of producing systemic toxicity.” From 1991-1997, the defendants
were placed on varying degrees of notice. In 1991, a consultant was hired who informed
Firmenich of the

dangers of potent inhalation hazards of numerous chemicals, including

diacetyl, and advised the company to specially label the chemical, provide additional warnings,
and take additional precautions in its use and storage. In 1992, Givaudan discovered one of its
employees had been diagnosed with bronchiolitis obliterans and that one of the employees
may have die d as a result. In 1996, Givaudan informed FEMA of the bronchiolitis obliterans
diagnosis. In 1997, FEMA held a special conference to discuss respiratory safety and discussed
the suspe cted links between diacetyl exposure and bronchiolitis obliterans. In 2001, the Wall
Street Journal published an article about the prevalence of lung disease among employees at
612 | Defenses to Products Liability

an artificial butter flavoring manufacturing plant. Some changes in ventilation may have be en
made to minimize workers’ exposure to diacetyl and other respiratory hazards. On August 2,
2002, [the National Institute for Occupational Safety and Health (“NIOSH”)] conducted testing
of the plant in question and issued an update stating that they believed that “butter flavoring
in the air caused lung disease in workers at this plant.”
The NIOSH update made the following observation concerning quality control exposures:
“Many quality control workers had abnormal breathing tests and have continued risk even
after the ventilation changes in the plant. Based on our survey results, we believe that they
may receive many peak exposures to flavoring vapors when microwaving the popcorn bags,
opening them, and measuring the amount of hot popcorn. When the popcorn/flavorings
temperature increased, the vapor increased, although the high e
xposures only lasted for
seconds or a few minutes. We are concerned about these short peak exposures in the quality
control room and have

provided recommendations for control.” By 2003, NIOSH had

broadened the scope of its investigations to include se veral of ConAgra’s microwave popcorn
plants. A medical survey of ConAgra’s workers identified evidence of the same type of lung
disease. By the end of 2003, a number of ConAgra workers had filed lawsuits alleging that they
suffered lung disease as a result of exposure to butter flavorings.]
The plain language of § 2(c) focuses on the concept of “reasonableness” for judging the ade quacy
of warnings, a malleable concept that is intertwined with the facts and circumstances of each case.
“Whether the warning actually given was reasonable in the circumstances is to be decided by the trier
of fact.” RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 cmt. i. [***] No easy guideline
exists for courts to adopt in assessing the adequacy of product warnings and instructions. In making
their assessments, courts must focus on various factors, such as content and comprehensibility,
intensity of expression, and the characteristics of expected user groups. Id.
I find that the information and circumstances detailed above, considered in the light most favorable
to the Daughetees, generates genuine issues of material fact as to whether defendants knew or had
reason to know that their butter flavorings posed a potential risk, at some le vel, to consumers, thus
triggering the necessity for a warning. Therefore, this portion of defendants’ motion for summary
judgment on the failure-to-warn claims is denied.
b. Intermediary user defense
Defendants also move for summary judgment on the Daughetees’ failure to warn claims because
General Mills and ConAgra were “sophisticated” intermediary users of their butter flavoring products
and, thus, defendants were entitled to rely on General Mills and ConAgra to provide appropriate
warnings to consumers. The Daughetees argue

that defendants cannot avail themselve
s of the

intermediary user defense because the y failed to fully communicate the possible hazards of their
butter flavorings to General Mills and ConAgra and therefore could not reasonably rely on General
Mills and ConAgra to provide appropriate warnings.
*870 In Nationwide Agribusiness Ins. Co. v. SMA Elevator Constr., Inc., 816 F.Supp.2d 631, 653-54 (N.D.
Iowa 2011), I specifically found that:
Defenses to Products Liability | 613

“intermediary” defense is still viable under Iowa law. … Restatement (Third) § 2(c) and comment
i recognize a defense to a warning defect claim based on the duty of an intermediary—and not
even necessarily a “learned” or “sophisticated” intermediary—to warn the end user. Section 2
expressly considers whether “the foreseeable risks of harm posed by the product could have
been reduced or avoided by the provision of reasonable instructions or warnings by the seller
or other distributor, or a predecessor in the commercial chain of distribution.”
[fn] Comment i distills down to three non-e xclusive factors the considerations set out at length in
Comment n for determining when a warning to an intermediary is sufficient.
*871 I conclude, taking the facts in the light most favorable to the Daughetees, the non-moving party,
see Torgerson, 643 F.3d at 1042–43, that a reasonable juror could reject application of defendants’
‘intermediary” defense. Significantly, a reasonable

juror could conclude

that defendants’ butter

flavorings containing diacetyl were dangerous products if inhaled. Moreover, a reasonable juror could
conclude that the likelihood that the intermediaries, General Mills and ConAgra, would convey the
information to the ultimate user was greatly reduced or eliminated if defendants withheld information
concerning the dangers posed by their butter flavorings from General Mills and ConAgra. General
Mills and ConAgra could not be relied on as reasonable conduits for the ne cessary information
concerning defendants’ butter flavorings if defendants were not first forthcoming to them about the
respiratory dangers posed by their products. Finally, a reasonable juror could conclude that placing
an adequate warning on microwave popcorn products containing defendants butter flavorings would
not be burdensome. There is no material in the summary judgment record that either General Mills or
ConAgra were likely to refuse placement of a warning on their microwave popcorn product.
Therefore, this portion of defendants’ motion for summary judgment on the failure-to-warn claims is
also denied. [***]
2. Proximate cause
Defendants also seek summary judgment on the Daughetees’ failure to warn claims on the grounds
that the Daughetees cannot establish that defendants’ failure to warn Deborah was the proximate
cause of her lung condition. …
a. Proximate cause requirement
[***]“ In products liability, the plaintiff must prove his or her injuries were proximately caused by an
item manufactured or supplied by the defendant.” Spaur v. Owens–Corning Fiberglas Corp., 510 N.W.2d
854, 858 (Iowa 1994); [***]. It is well-settled that questions of “proximate cause are ordinarily for the
jury,” and “only in exceptional cases should they be de cided as a matter of law.” Thompson v. Kaczinski,
774 N.W.2d 829, 832 (Iowa 2009) (quoting Clinkscales v. Nelson Sec., Inc., 697 N.W.2d 836, 841 (Iowa
2005)) [***]
This is not an “exceptional” case. “In the context of a failure to warn claim, proximate cause can be
established by showing a warning would have altered the plaintiff’s conduct so as to avoid injury.”
… There is no material in the summary judgment record that *873 Deborah would have ignored
a warning to avoid breathing in the vapors from a freshly popped bag of microwave popcorn. A
614 | Defenses to Products Liability

reasonable juror could conclude that a person would not risk permanent, severe lung damage in order
to enjoy breathing in the buttery smelling vapors from microwave popcorn if warned about possible
serious consequences. There is also no material in the summary judgment record that either General
Mills or ConAgra were likely to refuse placement of a reasonable warning on their microwave popcorn
product. [***] Given these circumstances, I conclude that questions of proximate cause, here, are for
the jury to determine and deny this portion of defendants’ motion for summary judgment. …
C. Breach Of Implied Warranty Claims
Defendants also seek summary judgment on the Daughetees’ breach of implied warranty claims.
1. Are implied warranty claims redundant?
Defendants argue that the Daughetees’ breach of implied warranty claims in Count II are redundant
with their negligence claims found in Count I. Defendants argue that to submit both claims to the
jury will generate confusion and may well lead to inconsistent verdicts. The Daughetees respond
that, under Iowa law, both claims may be asserted in the same case. [***] The Iowa Supreme Court
… has clearly stated that “personal injury plaintiffs are permitted to seek recovery under tort and
warranty theories that in essence allege the same wrongful acts.” Wright, 652 N.W.2d at 181; see Mercer,
616 N.W.2d at 621 (holding no error in submitting personal injury claims under both strict liability
and breach of warranty theories); see also Lovick, 588 N.W.2d at 698 (stating that although claims for
negligence, strict liability, and breach of warranty are separate and distinct theories of liability under
products liability law, the same facts often give rise to those three claims). Thus, the Daughetees’
negligence claims and implie d warranty claims are not redundant. I also note that the risks of jury
confusion can be alle viated by instructions to the jury during trial and the manner in which the
Daughetees’ claims are submitted to the jury for deliberation. Accordingly, I deny this portion of
defendants’ motion for summary judgment.
2. Proof of a product defect
Defendants also argue that the Daughetees have offered no proof of a product defect, and, therefore,
their breach of implied warranty claims fail as a matter of law. The Daughetees respond that they have
adduced sufficient evidence to prevail on a breach of implied warranty claim based on either a failure
to warn or a design defect.
a. Defective because of inadequate warnings
Defendants assert that the Daughetees’ implied warranty claims based on inadequate warnings fail
because the y had no duty to warn Deborah about the dangers associated with their butter flavorings.
The Daughetees dispute defendants’ assertion. Both parties reassert all of their arguments addressed
above concerning the Daughetees’ failure to warn claims. For the reasons stated at length above, I
conclude genuine issues of material fact have be en generated on whether defendants knew or had
reason to know that their butter flavorings posed a potential risk, at some le vel, to consumers, thus
triggering the necessity for a warning. Therefore, this portion of defendants’ motion for summary
judgment is denied.

Defenses to Products Liability | 615

*876 b. Defective design
The Iowa Supreme Court has explained that, “[t]o succeed under [Restatement (Third) ] section 2(b), a
plaintiff must ordinarily show the e xistence of a reasonable alternative design, Wright, 652 N.W.2d at
169, and that this design would, at a reasonable cost, have reduced the foreseeability of harm posed
by the product[,] Restatement § 2 cmt. d.” Parish v. Jumpking, Inc., 719 N.W.2d 540, 543 (Iowa 2008);
accord Scott, 774 N.W.2d at 506 (“The Third Products Restatement section 2, as adopted in Wright,
requires plaintiffs in design defect cases to demonstrate the e xistence of a reasonable alternative
design.”). Defendants assert that the Daughetees’ implied warranty claims based on defective designs
fail because the y have offered no evidence of a reasonable alternative de sign. The Daughetees contend
that defendants’ assertion is untrue and that they have put forward evidence that diacetyl-free butter
flavorings was a viable alternative design. A review of those materials belies that claim. None of
the materials cited by the Daughetees supports the proposition that defendants have or could have
produced diacetyl-free butter flavorings. Thus, I find that the materials submitted by the Daughetees
are insufficient for a jury to conclude that a reasonable alternative design was available to butter
flavorings with diacetyl. Accordingly, this portion of defendants’ motion for summary judgment is
granted. [***]
D. Symrise Butter Flavor in ConAgra Microwave Popcorn
Defendant Symrise also se eks summary judgment on the Daughetees’ claims as they relate to Dragoco
butter flavorings contained in ConAgra ACT II Butter Lover’s microwave popcorn. Symrise asserts
that the Daughetees cannot prove that her lung disease was caused by Dragoco butter flavorings
contained in ConAgra ACT II Butter Lover’s microwave popcorn. Symrise argues that Dragoco only
provided butter flavorings containing diaceytl to ConAgra for a short time in the e arly 1990’s and that
the amount of Dragoco’s butter flavorings used in ConAgra’s ACT II Butter Lover’s microwave popcorn
is unknown. As a result, Symrise argues that Deborah’s exposure le vels to it are *877 speculative and
cannot support a finding of causation. Symrise further argues that any claim based on Deborah’s
exposure to Dragoco butter flavorings contained in ConAgra ACT II Butter Lover’s microwave popcorn
is barred under Iowa’s statute of repose, Iowa Code § 614.1.
The Daughetees respond that Dragoco’s butter flavorings are not the only butter flavorings containing
diacetyl that Symrise
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