1

Torts:
Cases and Context
Volume One

Eric E. Johnson
Associate Professor of Law
University of North Dakota School of Law

eLangdell Press 2015

About the Author
Eric E. Johnson is an Associate Professor of Law at the University
of North Dakota. He has taught torts, intellectual property, sales,
entertainment law, media law, sports law, employment law, and
writing courses. He has twice been selected by students as the
keynote speaker for UND Law’s graduation banquet. His writing on
legal pedagogy has appeared in the Journal of Legal Education.
With scholarly interests in science and risk, and in intellectual
property, Eric’s publications include the Boston University Law Review,
the University of Illinois Law Review, and New Scientist magazine. His
work was selected for the Yale/Stanford/Harvard Junior Faculty
Forum in 2013.
Eric’s practice experience includes a wide array of business torts,
intellectual property, and contract matters. As a litigation associate at
Irell & Manella in Los Angeles, his clients included Paramount,
MTV, CBS, Touchstone, and the bankruptcy estate of eToys.com.
As in-house counsel at Fox Cable Networks, he drafted and
negotiated deals for the Fox Sports cable networks.
Eric received his J.D. cum laude from Harvard Law School in 2000,
where he was an instructor of the first-year course in legal reasoning
and argument. He received his B.A. with Highest and Special
Honors from the Plan II program at the University of Texas at
Austin.
Outside of his legal career, Eric performed as a stand-up comic and
was a top-40 radio disc jockey. Eric archives teaching materials on
his website at ericejohnson.com. His online exam archive includes
more than a dozen torts essay exams and a bank of multiple-choice
questions.

i

For Joe and Zane

ii

Notices
This is the first edition of this casebook, updated December 2015.
Visit http://elangdell.cali.org/ for the latest version and for revision
history.

This work (but not including the cover art, CALI logo, and eLangdell
logo) is authored by Eric E. Johnson, published by CALI eLangdell
Press, and licensed under a Creative Commons AttributionShareAlike 4.0 International License (CC BY-SA 4.0). © 2015 CALI.
All rights not expressly granted by this Creative Commons license are
reserved. No copyright is asserted in U.S. Government works or
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and display this work, or make derivative works, so long as


you give CALI eLangdell Press and the author credit; and



you distribute any works derived from this one under the
same licensing terms as this.

Suggested attribution format for original work:
Eric E. Johnson, Torts: Cases and Context, Volume 1, 2015, published
by CALI eLangdell Press. Available under a Creative Commons BYSA 4.0 License.

This book is konomarked – requests for gratis permissions beyond
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feedback@cali.org.
CALI® and eLangdell® are United States federally registered
trademarks owned by the Center for Computer-Assisted Legal
Instruction. The cover art design is a copyrighted work of CALI, all

iii

rights reserved. The CALI graphical logo is a trademark and may not
be used without permission.
Should you create derivative works based on the text of this book or
other Creative Commons materials therein, you may not use this
book’s cover art and the aforementioned logos, or any derivative
thereof, to imply endorsement or otherwise without written
permission from CALI.
This material does not contain nor is it intended to be legal advice.
Users seeking legal advice should consult with a licensed attorney in
their jurisdiction. The editors have endeavored to provide complete
and accurate information in this book. However, CALI does not
warrant that the information provided is complete and accurate.
CALI disclaims all liability to any person for any loss caused by errors
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iv

About eLangdell Press
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v

Table of Contents
Torts, Volume One................................................................................................. 2
About the Author ................................................................................................ i
Notices ................................................................................................................ iii
About eLangdell Press ....................................................................................... v
Preface ................................................................................................................ 14
Acknowledgements ..................................................................................... 20
Part I: Preliminaries.......................................................................................... 22
1. Basic Concepts ......................................................................................... 23
What is Torts? .......................................................................................... 23
How Torts Fits In ................................................................................... 24
The Elemental Concepts of Private Law ...................................... 26
Where Tort Law Comes From.............................................................. 27
The Structure of a Tort Case................................................................. 31
The Parties ......................................................................................... 31
Causes of Action, Elements, Affirmative Defenses, and Burdens
of Proof .............................................................................................. 31
2. An Overview of Tort Law ..................................................................... 35
The Lineal Torts – Direct Harm to Persons or Physical Property . 36
Causes of Action for Accidents ...................................................... 36
Strict Liability ..................................................................................... 38
Intentional Torts ............................................................................... 39
The Oblique Torts – Economic or Dignitary Harm ......................... 44
The Whole Torts Landscape Considered Together .......................... 46
Part II: Negligence ........................................................................................... 47
3. Introduction to Negligence .................................................................... 48
Introduction ............................................................................................. 48
The Central Idea: Shifting the Burden of Loss .................................. 48
The Elements and Defenses for Negligence ...................................... 49
4. An Example of a Negligence Case ....................................................... 55

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Check-Your-Understanding Questions About Georgetown v. Wheeler72
5. When and to Whom is a Duty of Care Owed .................................... 73
Introduction ............................................................................................. 73
The Essential Concept: Foreseeability ................................................. 74
Case: Weirum v. RKO ..................................................................... 74
Questions to Ponder About Weirum v. RKO................................. 80
Some Historical Notes About Weirum v. RKO ............................. 80
Doctrinal Wiggle Room ................................................................... 81
Duty of Care in Entertainment Industry Cases ........................... 82
Problem: WZX Cash Patrol ............................................................ 82
Case: Kubert v. Colonna.................................................................. 83
The Duty of Care and Criminal Acts ................................................... 95
Case: Boyd v. Racine Currency Exchange .................................... 95
Questions to Ponder About Boyd ................................................. 100
The Use of Boyd to Decide Duty in Orrico v. Beverly Bank ......... 100
Affirmative Duties ................................................................................ 101
The General Rule: No Affirmative Duty to Help ..................... 102
Case: Yania v. Bigan ....................................................................... 102
Questions to Ponder about Yania ................................................ 105
Case: Theobald v. Dolcimascola................................................... 105
Questions to Ponder About Theobald ........................................... 110
The Exception of Defendant-Created Peril ............................... 110
Case: South v. Amtrak.................................................................... 111
Questions to Ponder About South v. Amtrak .............................. 119
Weather and “Atmospherics” ....................................................... 119
Evidence Law and Procedural Posture........................................ 120
Note About the Interpretation of Statutes ................................. 120
“Good Samaritan” Laws ................................................................ 121
The Exception for Special Relationships .................................... 122
The Exception for Assumption of Duty..................................... 123
The Tarasoff Exception ................................................................... 124
Case: Tarasoff v. UC Regents ....................................................... 124

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Questions to Ponder About Tarasoff ............................................ 136
6. Breach of the Duty of Care.................................................................. 137
Determining Breach, in General ......................................................... 137
Terminology Note: Negligence vs. Negligence .......................... 137
The Essential Question: Was the Risk Unreasonable? ............. 138
Distinguishing Breach from the Other Elements ...................... 139
Case: Rogers v. Retrum .................................................................. 139
Intentional Conduct as a Breach of Duty ................................... 147
The Reasonable Person Standard of Care ......................................... 150
Basics................................................................................................. 150
An Objective Standard ................................................................... 152
Case: Vaughn v. Menlove .............................................................. 152
Accounting for Differences Among People ..................................... 156
Basics................................................................................................. 156
Mental and Physical Capacity and Disability .............................. 157
Case: Breunig v. American Family Insurance Co. ..................... 157
Experience and Level of Skill ....................................................... 162
Children ............................................................................................ 163
Gender .............................................................................................. 165
Some Questions to Ponder About the Reasonable Person
Standard ............................................................................................ 166
Negligence Per Se.................................................................................. 167
Basics................................................................................................. 167
What Makes a Statute or Regulation Amenable......................... 168
Case: Gorris v. Scott ....................................................................... 170
Negligence Per Se and Contributory/Comparative Negligence
............................................................................................................ 173
Negligence Per Se and Causation ................................................. 173
Case: Martin v. Herzog .................................................................. 174
Excuse for Complying with a Statute or Regulation ................. 186
Complying with Statutes or Regulations as a Defense.............. 187
Some Problems on Negligence Per Se ........................................ 188
The Role of Custom or Standard Practices....................................... 190

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Case: The T.J. Hooper ................................................................... 191
The Negligence Calculus ...................................................................... 196
Introduction ..................................................................................... 196
Case: U.S. v. Carroll Towing ......................................................... 197
The BPL Formula’s Place in Torts .............................................. 202
How the BPL Formula Works...................................................... 203
Some Simple Problems Using the Hand Formula..................... 207
Some Not-So-Simple Problems Using the Hand Formula ...... 208
Res Ipsa Loquitor .................................................................................. 209
The Usual Necessity of Specific Evidence of Breach ............... 209
The Place for Res Ipsa Loquitor .................................................. 210
Case: Byrne v. Boadle ..................................................................... 210
The Requirements for Res Ipsa Loquitor ................................... 213
The Effect of Res Ipsa Loquitor .................................................. 213
Recurrent Situations for Res Ipsa Loquitor ................................ 214
Case: Fowler v. Seaton ................................................................... 215
Postscript on Fowler v. Seaton ......................................................... 219
The Similarity of Res Ipsa Loquitor to Strict Liability .............. 220
Special Rules for Land Owners and Occupiers................................ 221
Undiscovered/Unanticipated Trespassers .................................. 222
Discovered/Anticipated Trespassers ........................................... 222
Discovered/Anticipated Child Trespassers ................................ 223
Licensees........................................................................................... 225
Invitees.............................................................................................. 225
Case: Campbell v. Weathers .......................................................... 226
Questions to Ponder About Campbell v. Weathers ....................... 233
Some Problems About Duties of Land Owners/Occupiers ... 234
Case: Rowland v. Christian............................................................ 235
Some Questions to Ponder About Rowland v. Christian............. 245
Statute: California Civil Code § 847 ............................................. 245
Some Questions to Ponder About California Civil Code § 847
............................................................................................................ 248
7. Actual Causation .................................................................................... 250

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Introduction ........................................................................................... 250
The But-For Test .................................................................................. 251
Actual Causation vs. Proximate Causation ....................................... 252
Some Notes on the Terminology of Causation................................ 253
Actual Causation’s Other Labels: Causation-in-Fact, Factual
Causation, and More....................................................................... 253
Think “A” Not “The” .................................................................... 255
Proof and Preponderance .................................................................... 257
Case: Beswick v. CareStat .............................................................. 257
Some Historical Notes on Beswick ................................................ 267
Note on Loss of a Chance and Some Questions to Ponder .... 268
Note on “Substantial Factor” ....................................................... 269
Multiplicity Issues .................................................................................. 270
Multiple Necessary Causes ............................................................ 271
Case: Jarvis v. J.I. Case Co. ............................................................ 272
Multiple Sufficient Causes ............................................................. 275
Case: Kingston v. Chicago & Northwestern Railway ............... 276
Twin-Fires Cases and the “Substantial Factor Test” in the
Multiplicity Context ........................................................................ 279
The Summers v. Tice Doctrine .................................................... 280
Case: Summers v. Tice ................................................................... 281
Market-Share Liability .................................................................... 284
Case: Sindell v. Abbott Labs ......................................................... 285
Problem: Nighttime Hit and Run ................................................. 300
8. Proximate Causation ............................................................................. 301
Introduction ........................................................................................... 301
The Place of Proximate Causation ..................................................... 302
The Label for Proximate Causation ................................................... 303
The Relationship Between Proximate Causation and Duty of Care305
Case: Palsgraf v. Long Island Railroad ........................................ 307
Questions to Ponder About Palsgraf ................................................... 321
A Different Version of the Palsgraf Case ..................................... 321

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More Questions to Ponder About Palsgraf ........................................ 322
Various Tests for Proximate Causation ............................................. 323
The Direct Test and Intervening Causes .................................... 323
Foreseeability and Harm-Within-the-Risk .................................. 325
Objects of Foreseeability ............................................................... 329
Unforeseeable Plaintiffs ................................................................. 329
Unforeseeable Type of Harm ....................................................... 329
Unforeseeable Manner of Harm................................................... 330
Unforeseeable Extent of Harm .................................................... 331
Superseding Causes......................................................................... 331
Case: Ryan v. New York Central Railroad .................................. 333
Thoughts About Ryan in Historical Context .................................... 336
9. Existence of an Injury ........................................................................... 337
In General............................................................................................... 337
Loss-of-a-Chance Situations................................................................ 339
Case: Herskovits v. Group Health ............................................... 339
Questions to Ponder About Herskovits ........................................ 345
The Thorny Question of Calibrating Damages in Herskovits, and
Some More Questions to Ponder................................................. 345
Pure Economic Loss ............................................................................ 348
Mental Anguish and Emotional Distress .......................................... 349
10. Affirmative Defenses to Negligence ................................................ 353
In General............................................................................................... 353
Plaintiff’s Negligence ............................................................................ 354
Contributory Negligence ............................................................... 355
Case: Coleman v. Soccer Association .......................................... 356
Questions to Ponder About Coleman v. Soccer Association .......... 366
Last Clear Chance Doctrine .......................................................... 366
Other Subversions of Contributory Negligence ........................ 367
Comparative Negligence ................................................................ 368
Statutes: Comparative Negligence ................................................ 371

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Some Problems on Applying Comparative Negligence Statutes
............................................................................................................ 375
Assumption of the Risk........................................................................ 376
Implied vs. Express Assumption of the Risk ............................. 376
The Elements of Assumption of the Risk .................................. 377
Relationship with Contributory and Comparative Negligence 378
Case: Murphy v. Steeplechase Amusement Co. ......................... 378
Questions to Ponder About Murphy v. Steeplechase...................... 382
Case: Hulsey v. Elsinore Parachute Center................................. 382
Case: Hiett v. Lake Barcroft Community Association .............. 392
Questions to Ponder About Hiett v. LABARCA ...................... 396
Public Policy Exceptions to Express Agreements to Assume
Risk .................................................................................................... 397
Part III: Liability Relating to Healthcare ................................................... 400
11. Common Law Liability in the Healthcare Context ........................ 401
In General............................................................................................... 401
The Standard of Care for Healthcare Professionals in Negligence
Actions .................................................................................................... 402
Basics................................................................................................. 402
Medical Battery ...................................................................................... 407
Case: Mohr v. Williams .................................................................. 409
Check-Your-Understanding Questions About Mohr ................ 414
Questions to Ponder About Mohr ................................................ 414
Informed Consent ................................................................................. 414
Case: Largey v. Rothman ............................................................... 417
Questions to Ponder About Largey .............................................. 428
12. ERISA Preemption ............................................................................. 429
Basics ....................................................................................................... 429
Case: Corcoran v. United Healthcare ........................................................ 431
Questions to Ponder About Corcoran ................................................. 449
Aftermatter.................................................................................................. 450
Unmarked Edits Generally .................................................................. 450

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Idiosyncratic Unmarked Edits in this Volume ................................. 451

13

Preface
(For both volumes)
What Makes this Casebook Different
This book is different from other casebooks in at least three key
ways.
First, this book departs from the traditional style of most casebooks.
Rather than just presenting a series of readings, notes, and questions,
this book makes a deliberate and systematic effort to explain
the law. It’s an implementation of an approach I argued for in an
article, A Populist Manifesto for Learning the Law, 60 JOURNAL OF LEGAL
EDUCATION 41 (2010). In keeping with that approach, this book
aims to be easy to read and to make it easy for students to learn
difficult concepts.
There’s something to be said for challenging students to figure out
things for themselves. But, in my view, traditional casebooks err too
much on the side of providing students with opportunities to get
befuddled. This casebook strives for a balance. There are many
formidable primary sources in these pages, but they are presented
within a treatise-like narrative that will, I hope, help students get
more of a return from their investment in reading.
Key to the explanatory mission of this book is an emphasis on
context. I want students to understand why they are learning what
they are learning, and where it fits into the bigger picture of tort law
and the legal system as a whole. You will find evidence of that
commitment in the first sentence of the first chapter, and it carries
through to the end. This book also aims for real-world context,
putting doctrine in the context of litigation strategy and trial tactics.
Second, this casebook is free. It is free in both senses of the word.
In one sense, it is free in that it does not cost the reader any money.
That is, the price is zero. You can get an electronic copy for free, or
you can buy a printed copy for whatever the paper and ink costs. You
can also print it out yourself.

14

The no-money sense of free is great, but this casebook is also free in
a deeper sense: It is unfettered by proprietary legal claims so that
you have the freedom to abridge, expand, repurpose, or adapt it
as you wish. That is to say, this book is “open source.” Consistent
with the terms of the Creative Commons license that this book is
published under, generations of instructors and students will be able
to rip and remix this book to suit their needs.
The license – which is simple to deal with – is CC BY-SA 4.0. It lets
you change up and redistribute the book so long as you share it
forward – that is, so long as you make it available to others under the
same license. The CC license is, in essence, a legal trick to keep
downstream users from locking the book up with their own
proprietary copyright claims.
The open-source nature of the book provides considerable
advantages. For one, it means instructors can create their own
customized version of this book at no cost. Cut out the parts you
don’t want, and fill-in anything you think is missing.
The CC license also means instructors will never be compelled to
use newer editions, since older versions will stay available, and
anyone can always keep re-distributing any version.
It’s helpful for learners, too. The open-source licensing means
students can cut-and-paste from this book to create their own
study materials.
CALI’s eLangdell Press, by the way, has a whole fleet of casebooks
with open-source/share-it-forward licensing arrangements.
Third, this casebook is offered not merely as a one-way
communication. Instead, this book constitutes an invitation to
you. If you are an instructor, please get in touch with me. I would be
happy to provide you with notes, slides, advice, and anything else I
can offer. And as the semester moves forward, I’d very much like to
hear how your class is going. If you are a student, I would love to
hear your comments about how this casebook is working and how it
could be improved. One the things I like best about teaching live in a
classroom is that I can see from the reactions of students whether

15

I’m doing a good job of explaining something. Since, in writing this
book, I can’t see any faces, I am relying on you and other readers to
not be shy about telling me what I am doing well and what I could be
doing better. You can find me at ericejohnson.com.
Let me go on to explain a little about the format of the book.
Questions and Problems
There are two types of questions in this book, and they are separately
labeled as such. In addition, there are problems for you to work.
Questions to Ponder: These questions are intended to be interesting
and helpful to think about after reading the preceding material. You
should not, however, attempt to figure out “the answer” to these
questions. They are not meant to have clearly correct answers.
Instead, the idea is to prompt you to think more deeply about one or
more facets of the case.
Check-Your-Understanding Questions: These questions are
intended to help you see if you absorbed the preceding material.
Unlike “Questions to Ponder,” the questions labeled as “CheckYour-Understanding Questions” are intended to have right answers.
Problems: The problems in this casebook are much more involved
than the questions. Rather than asking for you to ponder ideas or
come up with simple answers, the problems call upon you to do
analysis. That is, you are expected to apply what you have learned.
With the problems, you mirror to some extent the task of the
practicing lawyer. As you will learn by working through them, some
of the problems in this book have well-defined solutions. Others are
more open-ended and invite creativity. But all are meant to get you to
utilize doctrine and concepts to generate fresh insights in view of
new facts.
Editing of Cases
In editing the cases for inclusion in this book, I have strived primarily
for readability and brevity. Thus, I have been quite liberal in cutting
down courts’ text, and, in some cases, re-arranging it.

16

I have left a record of my editing either in the cases themselves, in
the annotations below, or in the aftermatter at the end of the book. I
realize most casebooks do not provide this level of detail about the
editing, but by thoroughly cataloging my edits, I hope to facilitate the
revision and adaptation of this book by others.
Footnotes
I have handled footnotes in a slightly unconventional manner. The
reason why is that this book is being written to work in multiple
formats, including print, the print-like PDF format, and various ebook formats with variable pagination. Achieving compatibility
across formats presents a problem with regard to footnotes.
Footnotes are no problem in print. But footnotes are often rendered
awkwardly in e-book formats.
This is a particular problem for a casebook. Courts love footnotes.
Gather together a collection of judicial opinions, and footnotes are
everywhere. In truth, footnotes are a wonderful structural tool for
writing, since they give the reader choices. Less essential matter is
kept out of the text, allowing a time-pressed reader to forge ahead.
Yet if a more probing reader wants to read the footnote material, the
eyes do not have to go far to find it. Unfortunately, standards
developers have not provided a way of dealing with digital footnotes
that preserves all the functionality they exhibit on paper.
One way around the problem posed by continuous pagination in
electronic formats would be to convert the footnotes to endnotes.
Hyperlinking can then facilitate a reader’s movement from the text to
the endnotes and back again. But that does not work in this casebook
for two reasons. First, even though clicking links back and forth is
easier than finding your way through a document with a scroll wheel
or slide knob, clicking links is still time consuming. And with a lot of
footnotes, the clicking time adds up. Second, this book is intended
also to work well in a print distribution, and you can’t use hyperlinks
to avoid page turning in a physical book.
Because of these concerns, I have adopted a zero-footnote/zeroendnote policy for this book.

17

Yet there is nonetheless footnote material in many cases that
deserves to be read. So, where I felt footnote material was important,
I have incorporated it into the inline text. I have adopted this
convention for marking footnote material:


The superscript right-pointing descending arrow indicates
the beginning of footnote material.


The superscript left-pointing descending arrow indicates the
end of a passage of footnote material.
While this system works well, there is one wrinkle: Sometimes courts
put footnote references in the middle of a sentence. Where this has
happened, I have had to depart from the exact linear order of the
text, usually by inserting the footnote material after the end of the
sentence.
Editing Marks
Because I think it is good for the reader to be able to get a sense of
the relative fidelity of the edited version of a reading compared to the
original, I have left editing marks in many places.
Editing a casebook presents a special challenge in indicating what
edits you have made. Courts themselves, when writing opinions,
include an enormous amount of quoted material. Thus, unedited
court opinions are filled with ellipses to show where the quoted
version differs from the original. If I used ellipses in editing the
opinions themselves, how could the reader of this casebook tell my
edits from the court’s?
To avoid such ambiguity, I have used a special mark in lieu of an
ellipsis where the chopping was mine:
~

The superscript tilda denotes matter omitted.

The superscript tilda also has the advantage of being less obtrusive
than an ellipsis.
About brackets:
[] Brackets indicate an insertion. The insertion may be mine
or the court’s.

18

The insertion is generally mine if the brackets are not in a quote,
although you’ll notice that some courts use brackets in and around
citations as part of their adopted citation style.
Any other editing marks you see are the court’s, not mine.
Unmarked Edits
While I have sought to indicate significant edits in the text, as I’ve
just described, I also have made unmarked changes. In such cases, I
left them unmarked because I felt marking them would have been
unduly distracting. In particular, I have liberally omitted citation
matter from cases, including parallel cites, portions of cites, and
whole cites. (Note that I didn’t remove all citation; in many places I
thought it was helpful or even essential.) Other unmarked edits are
cataloged in the aftermatter at the end of this book.

19

Acknowledgements
(For both volumes)
First and foremost, I want to acknowledge and thank my students,
particularly my torts students over the years at the University of
North Dakota. They helped me immeasurably to grow as a teacher,
and they provided invaluable feedback for the early forms of material
that evolved into this casebook. A particular note of thanks is due my
2014-2015 and 2015-2016 torts students. Many of them went aboveand-beyond-the-call in helping me ferret out typos and rework
unclear passages. Since they are current students, I won’t list names,
but I am truly indebted to them. I also owe thanks to the faculty,
staff, and administration at the University of North Dakota School of
Law for their considerable support.
Many other people lent me their time and advice to help with this
book. In particular, I grateful to Michael L. Corrado, Murray Tabb,
Patti Alleva, Paul LeBel, Keith Richotte, Adam Gutride, Jim
Dedman, Brian Schmidt, Devin Rogers, Pete Boll, Susan Carlson,
Karen Martin, Jan Stone, and, especially, my wife, Kit Johnson. I also
want to thank the anonymous reviewers who, through the CALI
editing process, provided excellent counsel.
In addition, I want to thank many people who have helped me in
indirect but important ways by having illuminating discussions with
me about torts – discussions that ultimately helped me frame the
explanations that appear in this book. Those people include Paul
Gowder, Sanne Knudsen, Sandra Sperino, John L. Watts, Bruce L.
Hay, Guido Calabresi, and, most especially, my own torts teacher,
Jon Hanson.
I am also grateful to Justice Raymond D. Austin who suggested
Benally v. Navajo Nation to me as a good teaching case, as well as
Jennifer L. Schulz for making the same suggestion with regard to
Dobson v. Dobson.
Finally, I want to warmly thank Deb Quentel and everyone at CALI
for supporting me in this endeavor. I am grateful to them not only

20

for their work with regard to this particular project, but also more
broadly for their efforts to make legal education more efficient,
effective, affordable, and accessible.

21

Part I: Preliminaries

22

1. Basic Concepts
To start, it’s helpful to get some context for what you will be
studying: what torts is, where it comes from, and how it fits into the
general scheme of law and the law-school curriculum.

What is Torts?
Torts is traditionally one of the core, basic, required courses in law
school. The subject of torts is civil lawsuits in which one person
alleges that another person perpetrated some harm. Personal injury,
medical malpractice, and defamation are all subjects of torts.
The subject matter of torts is broad and fundamental. If you wrote
out a list of 10 things someone could sue over, most of them would
probably be torts. Breach of contract is a matter for your contracts
course. Questions of who owns what are questions for your property
course. And many modern claims, such as copyright infringement or
antitrust violation, are based in specific federal statutes. But
otherwise, most of the traditional, frequently invoked claims that can
serve as a basis for a lawsuit can be categorized as torts. Someone
punches you? That’s a tort – it’s called battery. A careless driver loses
control and drives over your lovingly hewn shrubbery? That’s a tort –
it’s called negligence. An enraged neighbor intentionally drives over
your shrubbery? That’s the tort of trespass to land. The neighbor does
it over and over? Well, depending on how lovingly hewn the
shrubbery was, that could be the tort of intentional infliction of emotional
distress. Other torts include slander, invasion of privacy, products liability,
and fraud.
The word “tort” dates back to Middle English, where it meant a wrong
or an injury. The word, with its meaning, came to Middle English, by
way of Old French, from the medieval Latin “tortum.” That word
was produced as the past participle of “torquere,” which means to

23

twist. Etymologically, the word “tort” is related to “torque,”
“tortuous,” and “torture.”

How Torts Fits In
Let’s take a look at law school as a whole and see where torts fits in.
Typically, law schools have at least these six courses in the first year:
Torts, Contracts, Property, Civil Procedure, Criminal Law, and a
course in basic lawyering skills, which goes by different names at
different schools.
Torts is a doctrinal course teaching substantive private law.
Explaining what that means will help you see how Torts relates to
and is distinguished from your other courses.
Doctrine vs. Skills
Roughly speaking, there are two sets of subject matter taught in law
school – skills and doctrine. Sometimes both are taught in the same
course, but often a course tends to be either a skills course or a
doctrinal course. Generally, 1Ls will have one introductory course to
teach you how to do the things a lawyer does. This may be called
“Legal Methods,” “Lawyering Skills,” “Legal Reasoning and
Argument,” or something similar. You are taught how to do legal
research, how to write a brief, and maybe how to present an oral
argument in court. Advanced skills coursework may include trial
techniques, negotiation techniques, drafting for business transactions,
estate planning, and more. In contrast with skills courses, courses
that teach the law itself are called doctrinal courses. Torts is a
doctrinal course. Although a torts course might include some relevant
skills training, the primary mission is to teach you what tort law is.
Substantive vs. Procedural
Doctrinal subject matter can be divided into two camps: procedural
and substantive. Procedural law is law that governs the function of
legal institutions. Most first-year law students take a course called
Civil Procedure in which they learn the law that governs civil
lawsuits. This includes how to start a lawsuit by serving a summons
and a copy of the complaint on the defendant, which court to file the
lawsuit in, and other essentials. Other procedural courses include

24

Evidence, which largely concerns when you can say “Objection!” at
trial, and Federal Courts, which covers some fascinating questions
about the power of the federal courts in relation to Congress, the
president, and the states. Substantive law, by contrast, directly
governs what people can and cannot do, or to whom they will be
liable if they do certain things. In many schools, a course called
“Criminal Law” is about half procedural law (such as what constitutes
probable cause) and half substantive law (such as the difference
between murder and manslaughter). Torts is a body of substantive
law. Contracts and Property are substantive courses as well.
Private Law vs. Public Law
Law can also be divided into “private law” and “public law.”
“Public law” refers to direct regulation by the government of
individual conduct. If you run afoul of public law, then you are in
trouble with the government. Substantive criminal law fits within this
category, as does constitutional law, immigration law, environmental
regulation, zoning ordinances, and the motor vehicle code.
“Private law,” on the other hand, refers to substantive law that gives
one private party a claim on which to sue another private party. Torts
is this kind of law. If you commit a tort, you are not in trouble with
the government, but you might get sued by some private person.
Another way to refer to private law is “the law of obligations,”
meaning that it is the law that recognizes obligations between private
parties that are enforceable in court.
It is of course possible for the same action to create liability under
both private and public law. Many actions that constitute a tort will
also constitute a crime. If you intentionally kill someone, that’s
actionable in tort as wrongful death, and it is prosecutable under
criminal law as murder.
Technically speaking, the government could – if they really wanted to
– sue you as a private party in tort. But that almost never happens. If
the government comes after you, they have more potent means in the
public law than they have under private law. If you break into a secret
Air Force installation, for instance, the federal government is not

25

going to noodle around with a tort suit for trespass. The U.S.
Attorney will go to a grand jury and cook up an indictment with
some heavy federal criminal statutes. Getting sued would seem
dreamy by comparison.
The Elemental Concepts of Private Law
In most law schools there are three foundational first-year doctrinal
courses that each revolve around an elemental concept in private law.
Those courses are Torts, Contracts, and Property. Each of these
represents an essential idea that can give one person a claim against
another person in court. If one person injures another, that’s
actionable under tort law. If one person breaches a binding promise
to another, that’s actionable under contract law. If two people both
claim to own the same thing, a court can resolve the dispute using
property law.
These concepts are not just important as themes for first-year
courses. They are fundamental ideas that that animate law as a whole,
and thus the concepts from them will reappear over and over again
throughout law school.
Take misappropriation of trade secrets, for instance. If an employee
takes a secret recipe from a baker and sells it to a competitor, that is
actionable under trade secret law. Trade secret law is usually thought
of as a separate body of law, not as a species of torts, contracts, or
property. But at a fundamental conceptual level, when we ask why we
have trade secret law, we find ourselves using the basic theories of
tort, contract, and property to explain it. For instance, you could say
trade secret misappropriation should be actionable because it
constitutes a harm suffered by the originator of the secret. That’s a
tort way of thinking about it. Or, you could say the misappropriation
should be actionable because it represents a broken promise made by
the misappropriator to safeguard the secret. That’s a contract way of
thinking about it. Or you could say that the misappropriation is
wrong because the trade secret was owned by the originating party
and thus the misappropriator had no right to transfer or dispose of it.
That’s a property way of thinking about it.

26

You can think of torts, contracts, and property as the great commonlaw triumvirate in the first-year curriculum.
There is a fourth elemental concept, although it does not get its own
course in the core curriculum. That fourth concept can be called
unjust enrichment. The same concept also goes by labels such as
“quantum meruit,” and “restitution.” The idea here is that a court
should transfer some wealth from one person to another because the
other person deserves it more. This is a very broad idea, but it usually
is only applied in rare situations where no other theory would reach a
just result. For instance, when an unconscious person – incapable of
assenting to a contract – receives emergency treatment in a hospital, a
theory of unjust enrichment gives the hospital a legal right to get
paid. You might cover this doctrine in your contracts course.
So, that’s about it – four fundamental theories of the common law:
tort, contract, property, and unjust enrichment. Most of the private
law is built out of these four elements. So keep in mind that torts has
a conceptual importance well beyond this single course. You can
expect tort theories to come up in courses concerning constitutional
law, intellectual property, civil rights, federal courts, securities
regulation, and many others.

Where Tort Law Comes From
States vs. the Federal Government
In the United States, for reasons having to do with federalism and the
dictates of the U.S. Constitution, tort law is almost entirely a creature
of state law. Contracts, property, and unjust enrichment are, similarly,
matters of state law.
This has a very important implication for this course: You are going
to learn a generalized conception of tort law, not the law of any
particular state. There are many different versions of tort law in the
United States – including each state, plus the District of Columbia
and various territories. Happily, tort law is mostly the same
everywhere. But, unfortunately, you never know for sure what a
particular doctrine of tort law is in any given jurisdiction until you

27

check it out. And what may be a minor difference in the grand
scheme of things could make all the difference in a particular lawsuit.
For you, as a law student, this is both annoying and liberating. It is
annoying for obvious reasons: You could learn tort law extremely
well, but yet not be able to answer any particularized question about
it with certainty. It is liberating for the same reason – you are off the
hook from knowing with certainty how the law will apply to any
given situation. (This can make it a lot easier to dodge legal questions
posed to you by members of your extended family when you are
home for the holidays.)
By the way, when it is time for you to take the bar exam, you will find
that most state bars require you to know the generalized conception
of tort law, rather than your state’s particular law. When it comes to
torts, you could even get a multiple-choice question on the bar exam
marked wrong by answering it accurately based on your state’s
idiosyncratic law.
Every once in a while, federal law has a say in a torts lawsuit, but
such circumstances are rare. One example, covered in the part of this
book on healthcare liability, is how the federal Employee Retirement
Income Security Act – better known as “ERISA” – preempts tort
lawsuits against health insurers. Two other examples, subjects for
Volume Two, concern the Federal Tort Claims Act and
constitutional due-process limitations on punitive damages.
Common Law vs. Civil Law
In American elementary schools, maybe even in middle schools and
high schools, it is common to teach that the three branches of
government – the legislative, the executive, and the judicial – each
have three separate, distinct jobs: The legislative branch makes the
law; the executive branch enforces the law; and the judicial branch
interprets the law. Unfortunately, this is wrong. It is not just slightly
inaccurate – it is fundamentally wrong. Most of the private,
substantive law that is on the books in the United States has been
created by the courts, not legislatures. This kind of court-created law
is called the “common law.”

28

For the most part, what you will study in torts, contracts, and
property are doctrines of common law. In creating, fine-tuning, and
revising these doctrines, the courts are not being “judicially activist.”
Under the common-law system, it is the job of the courts to do this.
This is the way it has been for centuries.
The tort of battery, for instance, allows one person to sue another for
a harmful or offensive touching. If someone kicks you, that’s a
battery. Battery is actionable as a tort not because a legislature passed
a statute, but because long ago, a court said it was. And later courts
followed that court. If you want to find the “law of battery,” you will
have to look in the reported opinions of the courts – not in the
enactments of the legislature. This makes looking up the law
complicated. And this is a large part of what people pay lawyers for:
Reading through lots of cases to figure out what the law is on any
given matter.
You could criticize the common-law method as abstruse, wasteful,
arcane, and undemocratic. And these criticisms would not be
groundless. Regardless, as a general matter, this is how the law works
in the “common-law countries,” a group which includes the United
States, the United Kingdom, Canada, Jamaica, Ireland, Tanzania,
Australia, and New Zealand, among others. Looking at this list of
common-law countries, you probably will not be surprised to learn
that the common-law way of doing things derives ultimately from
England.
There is another way of creating a system of private law that is much
closer to the government/law model you may have learned in
elementary school – that is, where the legislature makes the law and
the courts interpret the law. In this other way of doing things, the
legislature passes statutes that govern private legal causes of action.
This method is sometimes called a “code system,” since the essential
doctrines are arranged in the form of a written code – an organized
set of laws. This system is also called a “civil-law system.” Countries
that follow such a system are often referred to as “civil-law
countries.” Examples include France, Mexico, Germany, Japan,
Guatemala, Switzerland, Thailand, China, Brazil, and many others.
The phrase “civil law” can be confusing, because in the United States,

29

the word “civil” is often used in contradistinction to “criminal.” For
instance your “Civil Procedure” course will cover the procedural law
of “civil” lawsuits – meaning litigation that is not criminal litigation.
In this sense, a tort lawsuit is a civil lawsuit, even though torts is a
common-law subject. But to say that a country is a civil-law
jurisdiction is to say that it follows a code system, in which the
legislature creates the law of private obligations.
France is an archetypal civil-law jurisdiction. In France, the law that
allows one person to sue another comes from the Napoleonic Code.
The French civil-law heritage actually gives rise to two important
exceptions to the common-law nature of torts in the United States
and Canada. One state and one province have a code-based “law of
obligations” rather than a common-law of torts. Those two
jurisdictions are, naturally, Louisiana and Quebec. Owing to their
French colonial history, each has a legal system that is a descendant
of the Napoleonic Code.
While the code system has advantages, many of which are
immediately apparent – including organization and accessibility – you
will find that the common law has a wealth of subtly attractive
features. In fact, both the common-law and civil-law systems have
much to admire, which is perhaps why many countries – including
Botswana, South Korea, Cameroon, Kuwait, and Norway – have
adopted a mix of the two.
The Place of Statutes
Even in a common-law jurisdiction, the legislature has a role to play
in shaping tort law. While, for the most part, legislatures do not
create tort law, they can if they want to. And when a legislature
passes a statute on a point of tort law, it trumps any contrary judgemade common law.
For instance, the courts decided long ago that killing another person
is not actionable as a tort. If this sounds ridiculous to you, you are in
good company. Legislatures have found it ridiculous too. That’s why
state legislatures everywhere have passed statutes that create a
“wrongful death” cause of action and allow “survivorship” claims.

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So, some aspects of tort law are statutory in origin. Nonetheless, tort
law is, overwhelmingly, a body of judge-made common law. This
means that most of what you will study in a course on torts are cases
in which judges have announced and sharpened common-law
doctrines.

The Structure of a Tort Case
To proceed methodically through tort law, we will follow what you
might call the internal structure of a tort. Understanding this
structure requires separating out the roles of the plaintiff and
defendant, and then distilling causes of action, elements, and
affirmative defenses.
The Parties
A plaintiff is someone who sues. A defendant is a person whom the
plaintiff sues. In the torts context, this typically means that the
plaintiff got hurt and the defendant is the one who is alleged to be
responsible.
Causes of Action, Elements, Affirmative Defenses, and
Burdens of Proof
A cause of action, also called a “claim,” is a basis upon which a
plaintiff can sue. Torts has several causes of action. Some examples
are battery, negligence, false imprisonment, fraud, and assault. In
order to have a meritorious lawsuit, a plaintiff will need to properly
allege at least one cause of action. Plaintiffs can, and frequently do,
sue on multiple causes of action in the same lawsuit.
Each cause of action can be broken down into a number of
elements. For instance, the cause of action for battery can be divided
into the following four elements: (1) an action, that is (2) intentional,
and which results in a (3) harmful or offensive (4) touching of the
plaintiff. It is the plaintiff’s burden of proof to establish each of
these elements. The plaintiff must establish all of the elements of the
cause of action in order to win. It is not enough for the plaintiff to
establish one or even most of the elements. The plaintiff must
establish every single one in order to win.

31

If the plaintiff establishes each of these elements, then the plaintiff is
said to have made out a prima facie case. “Prima facie” is Latin for
“first face.” If a plaintiff has established a prima facie case, then the
plaintiff has presumptively won.
You can understand the requirement that a plaintiff establish every
single element just by thinking about it. Suppose you tap a stranger
on the shoulder and ask her what time it is – after which she
promptly sues you for battery. She can prove you undertook an (1)
action, which was (2) intentional, and which resulted in (4) a
touching. But the lawsuit must fail because there is nothing harmful or
offensive about tapping someone on the shoulder. Because that
element has not been established, the prima facie case for battery has
not been made out. If you change the facts to replace the tap on the
shoulder with a shove, then you have something harmful or
offensive. And in that case there would then be a prima facie case for
battery.
What does the defendant need to do to win a tort lawsuit? Absolutely
nothing. At trial, the defendant can just sit back and see how things
go, and if the plaintiff comes up short, failing to establish every
element, then the defendant will win.
Now, even if the plaintiff establishes all the elements, and therefore
has a prima facie case, the defendant still has two more ways to win.
First, the defendant can undermine the plaintiff’s prima facie case by
putting on additional evidence to refute the proof offered by the
plaintiff on at least one of the elements of the cause of action. This is
called a rebuttal defense. If the defendant can disprove just one
element, the defendant wins on that cause of action.
There is a second way for the defendant to win as well: an
affirmative defense. If the defendant can establish an affirmative
defense, then the defendant can actually stipulate to the plaintiff’s
entire case and yet still win. An affirmative defense defeats the
entirety of the plaintiff’s successful prima facie case.
Different tort causes of action have different defenses. For the tort
of battery, two principle defenses are consent and self-defense. Let’s
say you punch someone in the face. That’s a battery. But suppose you

32

punch the person in the face in the context of a boxing match. In
that case, you can establish the affirmative defense of consent.
Consent is a complete defense to battery. Alternatively, if the punch
in the face was in the context of defending yourself against someone
physically attacking you, then you can establish the affirmative
defense of self-defense.
It’s a little strange how this works: If you punch someone in the
context of a boxing match, you have committed a battery. That
means that a prima facie case can be established against you. It does
not mean the plaintiff will win when all is said and done, but it does
mean the burden is on you, as the defendant, to establish that the
punch was consented to in order to avoid liability. That’s not to say
that this will be difficult: Just provide credible testimony that the
plaintiff stepped into a boxing ring and took a fighting stance while
wearing boxing gloves – that will suffice to show implied consent.
The general standard of proof in a torts lawsuit is preponderance of
the evidence. This means that it counts as “proof” to show that
something is more likely than not. If a jury, after hearing conflicting
evidence, determines it was 50.000000000000001% likely that a
defendant acted with consent when punching someone, then that
counts as proof. The preponderance standard works for whomever
has the burden of proof in a torts case on a given issue. That is, the
preponderance standard is the standard by which plaintiff must prove
every element of a cause of action, and it is the standard applied to
defendants seeking to establish an affirmative defense.
One way of thinking about the burden of proof and the
preponderance standard together is that it constitutes a tie-breaker. If
the question is whether a prima facie case has been established for a
given cause of action, then the burden is on the plaintiff – that means
that any tie will go to the defendant. If the issue is whether an
affirmative defense is established, the burden is the defendant’s – so a
tie on that issue will go the plaintiff. (Just remember, a defendant is
not required to prove an affirmative defense to win. If the plaintiff
fails to prove any element of a given cause of action, then the
defendant wins without doing anything.)

33

The preponderance standard can be compared to the well-known
standard for criminal prosecutions: proof beyond a reasonable doubt.
The reasonable-doubt standard in criminal law is a high bar. By
comparison, the preponderance of the evidence standard in a tort suit
is easy to meet. Suppose, after a trial, a jury collectively thought, “We
aren’t very sure about it, but we think it’s slightly more likely than not
that the defendant intentionally killed the victim.” That’s enough for
a wrongful-death verdict, but it would lead to an acquittal for a
murder charge.
One more note about causes of actions and affirmative defenses:
Remember that it is possible for a plaintiff to allege more than one
cause of action in a lawsuit. In fact, it’s typical. Similarly, a defendant
may raise multiple affirmative defenses. A single altercation between
two people could give rise to claims for battery, negligence, false
imprisonment, fraud, defamation, and more. Each of those claims
could give rise to multiple affirmative defenses, and all would
ordinarily be dealt with in the same lawsuit.
Why allege more than one cause of action? Well, some causes of
action entitle a plaintiff to more in monetary damages than others.
Some are easier to prove than others. Bottom line, however, to get
some relief, a plaintiff needs only to prevail with one cause of action.
Similarly, for any given cause of action, a defendant can raise multiple
affirmative defenses. But the defendant needs only to prove one
affirmative defense to prevail with regard to any given cause of
action.

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2. An Overview of Tort Law
Now that you understand the fundamentals of causes of action,
elements, and affirmative defenses, we can start to sketch an
overview of the subject of tort law.
Before delving into the details of particular tort causes of action, it is
extremely helpful to take the time to learn the broad outlines of the
entire subject matter. Why? Having a framework of any subject
makes it easier for you understand and absorb details. Moreover,
when it comes to torts, you will find that there are many points of
connection among disparate aspects of the subject matter. For
instance, an aspect of negligence doctrine – called res ipsa loquitor –
is similar in important ways to the cause of action for strict liability. If
you take the time at the outset to study the overview, you will be able
to understand these linkages much more readily when they come up
later on.
As a common-law subject, torts has no official organization scheme.
It exists as a disconnected mass of judicial opinions spanning a
multitude of jurisdictions. The opinions are put into reporter
volumes in chronological order – not grouped by topic. In fact, you
would have a hard time grouping cases by topic if you tried, because
any given case often deals with multiple topics.
Yet to tackle the subject of torts methodically, it is necessary to adopt
some organizational scheme. There is some unavoidable artificiality
in doing this, but imposing some form of order is needed to make
the subject comprehensible to the uninitiated.
The most straightforward way to organize the study of torts seems to
be to group together causes of action, and then explore one cause of
action at a time, running through the elements and relevant defenses
for each. That is how this book is organized. Unfortunately, some
topics do not fit into this structure, since they are relevant to all or
many tort causes of action. Such topics include immunities, remedies,
special issues regarding who can sue, and generically applicable

35

affirmative defenses. Such topics will be treated separately (and they
will appear in Volume Two).
To take a first cut at dividing up all the tort causes of action for
study, we’ll separate them into two large piles, to which we will give
the labels “lineal” and “oblique.”

The Lineal Torts – Direct Harm to Persons or
Physical Property
What we are calling the lineal torts are the ones that involve some
kind of direct injury to a person’s body or physical property. (And
rarely, the harm can be to a person’s mental well-being.) In this
category of lineal torts, the harm to person or property is a direct
one. Bar brawls, car crashes, and exploding soda-pop bottles are all
examples.
Lineal-tort causes of action can be divided into two categories: those
that will accrue from accidents, and those that only apply to
intentional actions.
Causes of Action for Accidents
Negligence
The most general cause of action that is available for accidents is
negligence. Motor-vehicle accidents, slip-and-falls, and most kinds of
medical malpractice are negligence cases. There are five elements to
the cause of action for negligence.
(In plain English:)
A plaintiff can win a negligence case by showing
that (1) the defendant had an obligation to be
careful, (2) the defendant wasn’t careful, and
that carelessness was (3) an actual cause and (4)
a not-too-indirect and not-too-far-fetched cause
of (5) a bodily injury or damage to physical
property.

Those are the elements of negligence. But those are not the words
courts actually use to talk about negligence. We will have to translate
our plain English into legal terms of art – “legalese,” if you want to
call it that.

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(Restated in legal terms of art:)
A plaintiff can establish a prima facie case for
negligence by showing: (1) the defendant owed
the plaintiff a duty of due care, (2) the
defendant breached that duty, and that breach
was (3) an actual cause and (4) a proximate
cause of (5) an injury to the plaintiff’s person or
physical property.

The duty of care concept simply means that, under the
circumstances, the defendant had an obligation to be careful. A
defendant is said to owe a duty of care (i.e., have an obligation to be
careful) with regard to all “foreseeable” plaintiffs. This means that if
you should have known you could hurt someone by being careless,
then you had an obligation to be careful.
The breach element is established if the defendant was not, in fact,
being careful.
The element of actual causation means that there is a logical causeand-effect relationship between the defendant’s carelessness and the
plaintiff’s injury. That is to say, if the defendant had actually been
careful, then the plaintiff never would have gotten hurt. Generally
speaking, if the plaintiff would have gotten hurt anyway, then the
element of actual causation is not met.
The element of proximate causation means that the cause-andeffect relationship between the defendant’s conduct and the
plaintiff’s injury cannot be too bizarre. If newlyweds driving back
from their wedding reception are paying more attention to one
another than the road, and because of this, their car rear-ends yours,
you can sue the driver, and maybe the distracting passenger, but you
cannot sue the matchmaker who got the two lovebirds together. Why
not? A court would say that the matchmaker’s actions were not a
“proximate cause” of the collision.
The injury element requires that the plaintiff actually got hurt. You
cannot sue someone in negligence just because you are mad at them
for almost getting you killed. If you come away without a scratch, then
there is no negligence case.

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There are three affirmative defenses that are particularly relevant to
negligence. The first two are comparative negligence and
contributory negligence. These are really two different versions of
the same idea – relieving the defendant from liability when the
plaintiff’s own negligence contributed to the plaintiff’s injury. This
kind of defense may either be complete, absolving the defendant of
all liability, or partial, allowing the defendant to pay no more than
some percentage of the total damages. An additional affirmative
defense is assumption of the risk, based on the idea that where the
plaintiff knowingly and voluntarily assumed the risk of something
bad happening, the defendant should not be liable.
Strict Liability
The cause of action for strict liability, like negligence, is also available
for a plaintiff who has suffered a bodily injury or property damage
because of an accident. But while negligence is available broadly for
just about any kind of accident, strict liability is available only in a few
limited circumstances in which the law imposes an absolute
responsibility for safety. Those circumstances are:


wild animals



trespassing livestock



domestic animals with known vicious propensities



defective products



ultrahazardous activities

The elements for strict liability are the same as those for negligence
with one powerful exception: The duty-of-care and breach-of-duty
elements are removed. This means that if the cause of an injury falls
into one of the five categories for strict liability, then it doesn’t matter
how careful a defendant was being.
A plaintiff can establish a prima facie case for
strict liability by showing: (1) the defendant’s
conduct falls into one of the categories for
which there is an absolute responsibility for
safety, and the defendant’s conduct was the (2)

38

actual cause and (3) proximate cause of (4) an
injury to the plaintiff’s person or physical
property.

The key question in strict liability is when it may be invoked; that is:
How do we define the categories giving rise to absolute responsibility
for safety?
Ultrahazardous activities trigger the absolute responsibility for safety.
That much is clear. But there is considerable room for argument as to
what qualifies as ultrahazardous. Some examples of activities the
courts have said qualify as ultrahazardous are fireworks, blasting,
crop dusting, fumigation, oil drilling, and just about anything nuclear.
On the other hand, jurisdictions are split on whether transporting
gasoline by tanker truck qualifies.
With regard to defective products liability, the key question is what
counts as a defect. The law recognizes three kinds of defects: a
manufacturing defect, whereby some product failed to be made to
specification; a design defect, where the product was designed in
such a way that it was unreasonably dangerous; and a warning
defect, in which the lack of a clear warning causes an otherwise safe
product to be dangerous. An interesting aspect of strict products
liability is that anyone in the distribution chain can be held liable,
from the retailer, to the distributor, to the manufacturer.
We will save elaborations, complications, and exceptions for later,
but for now it may give some readers peace of mind to know that
selling items at a garage sale does not make you a retailer for
purposes of strict products liability.
Intentional Torts
The next broad category is that of intentional torts. You will see that
where the defendant acted with intent in harming the plaintiff, the
law allows many more options for recovery.
There are seven traditional intentional torts. Four are personal, three
are property-related. The intentional personal torts are battery,
assault, false imprisonment, and outrage (also known as intentional
infliction of emotional distress, or “IIED”). The intentional property

39

torts are trespass to land, trespass to chattels, and conversion. For
these torts, we will sum up each in a sentence, saving a formal
breakdown into elements for later.
Battery
The tort of battery requires an intentional infliction of a harmful or
offensive touching of a person.
The touching does not need to be direct. Touching someone’s
clothing, or even an object the person is holding, can qualify. Setting
in motion some process that eventually results in a touching qualifies
as well. Setting up a bucket of water to pour on someone’s head
when they walk into a room weeks later will count as a touching. The
touching also does not need to be on the outside of the body. Giving
someone a beverage adulterated with a disgusting substance or a
narcotic would count as a touching.
The intent requirement is more relaxed than you might think, as well.
Knowing with substantial certainty that a person would be harmfully
or offensively touched, for instance, suffices for the purposes of
battery. Intent is also satisfied where the defendant intended only a
near miss.
The most important aspect of battery, when compared to negligence
and strict liability, is that there is no injury requirement. Spitting on
someone, for instance, rarely causes an injury. But it will constitute a
battery. In a case without an injury, it might not be possible to win
any appreciable monetary award, but a claim can nonetheless be
made and vindicated. And since some harmless touchings are quite
reprehensible (e.g., spitting), a large award of punitive damages might
well be justified.
Battery covers an enormous range of conduct, from the
inappropriate to the catastrophic. Pulling hair is a battery. So is a
bombing.
The affirmative defense of consent is extremely important to battery.
Consent can be expressed in words or implied by the circumstances
or a past course of interaction. The defense of consent is what keeps
contact sports out of the courtroom.

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Assault
The tort of assault is similar to battery, but it does not require a
touching. Assault is defined as the intentional creation of an
immediate apprehension of a harmful or offensive touching. In
other words, making someone think they are about be the recipient
of a battery constitutes an assault. Like battery, assault does not
require an injury as part of the prima facie case.
Also like battery, the intent requirement is nonspecific. Intending to
hit someone, but actually missing, qualifies as intent for the purpose
of establishing battery.
False Imprisonment
The tort of false imprisonment is established by proof of intentional
confinement – experienced or harmful – of a person to a
bounded area. Kidnapping counts as false imprisonment. But a very
brief period of locking someone in a room is false imprisonment as
well. An actionable confinement can be accomplished by physical
force, threat of physical force, or improper claim of legal authority.
For instance, overzealous store security guards can accrue liability for
false imprisonment by making improper assertions of legal authority
in detaining persons suspected of shoplifting.
No harm needs to be done, nor any injury inflicted, for a claim of
false imprisonment.
A key affirmative defense is consent, which, for instance, keeps
airlines from incurring liability for making passengers wait for the
ding before getting out of their seats. Another key affirmative defense
is the lawful arrest privilege, which allows the police and sometimes
citizens to effect the arrest of a criminal suspect.
Outrage (or
Distress)

Intentional

Inflection

of

Emotional

The tort of outrage is commonly called intentional infliction of
emotional distress, a name unwieldy enough that it is usually
shortened to “IIED.” Liability for the tort is triggered by the
intentional or reckless infliction, by extreme and outrageous
conduct, of severe emotional distress.

41

The key to remember with outrage is that merely insulting or treating
someone badly will not suffice. The conduct has to be extreme and
outrageous. Teasing and name-calling does not qualify. Falsely telling
someone that a loved one is dead, however, certainly would.
Sometimes an outrage claim can be successfully pursued in
employment situations where a worker’s boss engaged in a prolonged
campaign of harassment.
Also important, the emotional distress experienced by the plaintiff
must be severe. Making someone cry is not enough. Reducing
someone to uncontrolled screaming or prolonged hysterical sobbing,
however, would likely qualify as severe. Over the longer term,
severity could be established by proving recurring night sweats, heart
palpitations, panic attacks, or the wearing down of teeth through
chronic grinding.
Trespass to Land
The intentional tort of trespass to land requires an intentional
physical invasion of a person’s real property. Real property is land
along with anything built on or affixed to the land, as well as the
subsurface below and the airspace above to a reasonable distance.
Failing to remove something from the plaintiff’s land that the
defendant is obligated to remove also counts as trespass to land.
To have a valid claim for trespass to land, no injury is necessary.
Touching a physical portion of the land is not even necessary. A
disgruntled homeowner could theoretically sue neighborhood kids
for playing a game of catch in which a ball is thrown over a corner of
the homeowner’s lot. Of course, in such a case, no compensatory
damages would be awarded, since there is no harm needing
compensation. Punitive damages would be unavailable as well, since
the kids’ behavior would not warrant it. In such a case a court would
likely award only nominal damages of $1. So, such a case would, as a
practical matter, be pointless to pursue. But the fact that bringing
such a claim is possible serves to illustrate the incredible sweep of the
tort of trespass to land.

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Also important for trespass to land is how the intent requirement is
construed. The defendant does not need to have the specific intent to
trespass. If the defendant intends only to walk upon a public right-ofway, but nonetheless strays onto private property, the intent of
putting one foot in front the other is sufficient intent to establish the
cause of action.
Of course, consent is a defense, as it is to intentional torts generally.
So when the neighborhood kids come trick-or-treating, they will have
a defense of implied consent.
Trespass to Chattels
Chattels are items of tangible property that do not qualify as real
property. Motor vehicles, paper clips, jewelry, horses, and helium
balloons are all chattels. An action for trespass to chattels will lie
when there is an intentional interference with plaintiff's chattel
by use, intermeddling, or dispossession.
The requirement for trespass to chattels is stricter than for trespass to
land. Merely touching or waving a limb over real property counts as
trespass to land. But for trespass to chattels, a mere touch will not
qualify, nor will merely picking the item up. There has to be
something more – not damage, but something that amounts to an
interference with the plaintiff’s rights in the chattel. Stealing the item,
damaging it, or destroying it would be more than enough.
Conversion
The intentional tort of conversion is an alternative cause of action for
chattels. A conversion is effected by an intentional exercise of
dominion or control over a chattel that so substantially
interferes with the plaintiff's rights as to require the defendant
to be forced to purchase it.
If the plaintiff wants to pursue conversion, the plaintiff will need to
make a heighted showing compared to trespass to chattels, proving
that the defendant so substantially interfered with the chattel that a
forced sale is warranted.
The main difference between trespass to chattels and conversion is
the remedy. For conversion, the court will order the defendant to pay

43

the plaintiff for the value of the chattel before the defendant
interfered with it. It is an example of what is called a “forced sale.”
Afterwards, the plaintiff must deliver the chattel to the defendant –
or whatever is left of it.
If the plaintiff wants to keep the chattel, regardless of its condition,
then the plaintiff should pursue an action for trespass to chattels. The
monetary recovery might be lower, but the plaintiff does not have to
part company with the object.

The Oblique Torts – Economic or Dignitary Harm
The other major group of tort causes of action applies where the
harm is not a direct one to person or property. The harm may by
financial, or it may be to one’s sense of dignity or reputation. We will
only discuss these very briefly, just enough to demonstrate the range
of situations in which tort law provides a mode of redress for oblique
harms.
Many oblique torts concern a purely financial loss.
The tort of fraud allows a cause of action in certain circumstances we
would call, in the ordinary vernacular, “getting ripped off.” A fraud
claim requires that the defendant made a misrepresentation to the
plaintiff, that the plaintiff relied on it, and that this ended up making
the plaintiff worse off. A typical situation is where the defendant lies
in order to get the plaintiff to purchase worthless goods or put
money into a shady investment.
The tort of intentional economic interference allows a plaintiff to
sue when someone does something to prevent the plaintiff from
closing a business deal or getting the benefits of a valid contract. In
the prototypical case, the defendant is an intermeddler, who for some
reason, possibly out of spite, wants to make someone flounder in
their career or line of business. The most important thing to
understand about the intentional economic interference tort is that it
cannot be brought against a party to a contract for failing to live up
to the terms of a deal. The action available in such a situation is one
for breach of contract. The intentional economic interference tort

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can only be brought against third parties who have no business
involving themselves in the matter.
Other oblique torts are more concerned the plaintiff’s sense of
dignity and integrity.
The tort of defamation can be brought against a person who
communicates false, reputation-harming statements about the
plaintiff. Defamation in writing is called libel, while the defamation
that is spoken is slander. Libel is easier to allege. For slander, a
plaintiff will only be able to make out a prima facie case under certain
circumstances, such as if the false statement is about certain sensitive
topics or if the plaintiff can prove a direct financial loss resulting
from the statement. The largest limitation on defamation comes in
the form of the First Amendment, which can make it nearly
impossible for public officials and public figures to sue their critics in
most circumstances.
There are multiple torts that fit under the banner of invasion of
privacy. One, false light, is similar to defamation in that it allows a
cause of action for certain false statements, but it does not require the
kind of harm to reputation that defamation requires. The tort of
intrusion upon seclusion allows lawsuits against peeping toms and
others engaged in eavesdropping, surveillance, or various other sorts
of creepiness. Meanwhile, the cause of action for public disclosure
allows suits against people who communicate embarrassing, private
information about the plaintiff to the public at large. And finally, the
tort cause of action called the right of publicity creates liability for
certain commercial uses of a person name, voice, or likeness. It is
principally useful to celebrities suing makers of unauthorized
merchandise – like t-shirts, stickers, and coffee mugs – as well as for
anyone whose name is unwittingly used in an advertisement. Consent
is a defense – one, in fact, that you will find buried in the terms of
service for Facebook and Google.
There yet more common-law tort causes of action, some of them
quite exotic. Examples are some relics of a different age that allow
lawsuits to be brought by cuckolds and jilted bridegrooms. These
may be more interesting for their historical value than anything else.

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Other torts – many with considerable present-day relevance – are
statutory in origin. These include claims against government officials
for civil rights violations.

The Whole Torts Landscape Considered Together
As you can see, there are a variety of torts, each with its own tangle
of convoluted doctrine prescribing when persons are entitled to
redress. Ultimately, the range of tort claims and defenses reflects
society’s ideas about what counts as hurtful and wrong and what we
owe to one another as citizens of the same complicated, crowded
society. Our views on these subjects, of course, are complicated, so it
is probably inevitable that tort law is complex as well. But as a
student, take heart, because as complicated as it might be, tort law
takes its current form from having been hammered over the lumps
and bumps of human concern – and that is a subject that you, just by
living on this planet, have already become intimately familiar with.

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Part II: Negligence

47

3. Introduction to Negligence
Introduction
The center-stage cause of action in torts is negligence. In terms of its
economic impact and social importance, negligence predominates.
In its briefest form, the doctrine of negligence holds that if you are to
blame, through your carelessness, for an injury to the person or
property of another, you will be liable for the damage.
Attorneys who practice “personal injury law” are, for the most part,
working with the negligence cause of action. Bus-stop ads and
billboards offering legal representation for “ACCIDENTS” are
mostly aimed at negligence claims. On the other side of the coin,
defending against negligence suits is a major preoccupation of
insurance companies.

The Central Idea: Shifting the Burden of Loss
Negligence is all about who should bear the burden of the loss that
results from an injury-producing incident. It takes as a given that
something bad has happened. Often it is something tragic.
Negligence tries to make the best out of a bad situation by allowing
the burden of the loss to be shifted from one party to another where
appropriate.
Fundamentally, the negligence cause of action is about compensation.
It is not about punishment. It is possible to get punitive damages as
an added remedy in a negligence lawsuit, but doing so requires
proving more than negligence. In particular a punitives damages
award requires showing that the defendant’s conduct was reckless,
wanton or willful. But at its most basic level, the cause of action for
negligence is about trying to allow a less blameworthy party to shift
the burden of misfortune on to a more blameworthy party.

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There are many stories of runaway jury verdicts in negligence cases
that give plaintiffs a huge windfall of cash. Some of these stories are
apocryphal. Most omit important context that would make the
verdict seem less shocking. Jackpot verdicts happen, but they are
outliers, and even those are usually cut down to size on a post-trial
motion or appeal.
Real-life jury verdicts that run to the millions of dollars often include
large punitive damage components, meaning more than negligence
was at work. If a huge verdict is handed down merely on the basis of
negligence alone, and thus comprises only what are called
“compensatory damages,” then it is usually because the plaintiff will
suffer lifelong chronic pain, has permanent injuries that will make
normal life impossible, or will be unable to pursue what had been a
very lucrative career. Or it might be a combination of these factors.
For example, a multi-million-dollar verdict consisting of only
compensatory damages could well be possible – and might even be
expected – for a young Wall Street financial whiz whose brilliant
career was cut short by a massive brain injury that has left her in
constant, severe pain and unable to eat, drink, or use the toilet
without assistance. In other words, a person with a huge
compensatory damages verdict is probably someone you wouldn’t
want to switch places with.

The Elements and Defenses for Negligence
The law of negligence is both complicated and simple. Negligence is
simple in terms of its central idea. That idea is that a party injured in
an accident should be able to recover the loss from whoever is at
fault for causing the accident. The core notion is one of responsibility.
A good way to think about the law of negligence is that it is a
formalized system for assigning blame. The elements of the prima
facie case for negligence, and the defenses that are allowed, form a
highly structured way for the courts to “think” about issues of
responsibility and blame, and thereby hold a party accountable. This
is where negligence law gets complicated. Exactly what does it mean
to say that someone is “to blame” for an injury?

49

Try to imagine that you are shipwrecked on a remote island with a
large group of castaways. None are lawyers or judges. There are no
books and no internet. You are appointed as a judge in this cleavedoff society. A dispute comes before you, and you are asked to
determine whether someone is to blame for an accident. “Blame” is a
broad and vague word. How could you subdivide the question for
analysis? In other words, what things would have to be true for you
to confidently say that a given person to be “to blame” for the
injuries of another? Essentially, these were questions that have been
put to the common law over the past centuries. And the answer the
common law has come up with is the modern cause of action for
negligence. The prime facie elements and affirmative defenses of
negligence reflect a way of dividing up the blame question into many
subsidiary issues.
Here are the elements of a prima facie case for negligence:
(1) The defendant owed a duty of care to the plaintiff. (That
is, the defendant had a reason to be careful.)
(2) The defendant’s conduct constituted a breach of that
duty of care. (In other words, the defendant was not careful.)
(3) The defendant’s conduct was an actual cause of the
plaintiff’s injury. (Without the defendant’s conduct, there
would not have been an injury.)
(4) The defendant’s conduct was a proximate cause of the
plaintiff’s injury. (This concept is complicated, but it means
something like the plaintiff’s injury isn’t so indirectly
connected to the defendant’s actions that it isn’t fair to hold
the defendant responsible.)
(5) There was an injury to the plaintiff’s person or property.
(An injury “to the person” here generally means the person’s
body, and “property” means something tangible.)
This way of dividing up the question of blame in the case of
accidents is not a logical necessity. Other people could have come up
with other systems. In fact, it’s not hard to argue that other systems
would be better. Regardless, this is the system we have.

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In talking about a different body of American law, legal scholar Sarah
Burstein said, “It’s a weedy garden, but it’s out garden.” The exact
same sentiment could be expressed about American negligence law.
This is a good point at which to pause and note that some other
people writing about torts – such as lawyers, commentators, or
judges – might tell you that the negligence cause of action only has
four elements. Others might say the number is six. Accountings of
the elements vary. But if you look closely at the content of what
other sources say, you will find that it is, in essence, the same as the
five elements laid out above.
Plausibly, a court could say that the negligence cause of action
consists of just two elements: (1) a breach of a duty of care owed to
the plaintiff, (2) an injury that was caused thereby. While this
formulation looks different – since it is two elements instead of five –
look closely and you will see that it is actually the same thing, just
with various parts lumped together.
You may be tempted to ask about the “official” list of elements of
the cause of action for negligence. Well, there is no official list. As a
common-law subject, negligence is the product of many, many
different courts, all reading each other’s work, but with no one really
in charge. Add to that the fact that the doctrine evolves over time.
The bottom line is that in learning torts, you will have to pay
attention to concepts more than labels.
Now, going back to the list of the five elements above, you might
think, right off the bat, that the concept of “duty of care” seems
strange and unnecessary. Once we get into it, however, you will see
that this element helps to filter out a lot of cases where it would seem
unfair for the plaintiff to be able to recover.
In particular, the duty-of-care concept helps filter out many cases
where the plaintiff’s injury seems too indirectly connected with the
defendant’s conduct. That the duty-of-care element would do this is
strange, since the proximate-cause element also helps filter out cases
where there is an indirect connection between the plaintiff’s injury
and the defendant’s conduct.

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The fact is, the elements of negligence contain considerable room for
overlap. In fact, the conceptual overlap between the duty of care
element and the proximate causation element is at the heart of what
is likely the most famous torts case of all time: Palsgraf v. Long Island
Railroad. We will get to that in a later chapter.
An alternative to the prima facie elements would be for every case to
be decided on its own, with a judge listening to both sides and simply
determining what is fair. And that is a very plausible way things could
be done. But it’s an anathema to the common law. The project of the
common law is to build a body of doctrine that helps to ensure that
like cases will be decide alike, no matter who the judge is and who the
parties are. By setting out a formal system, rather than depending on
intuition and a rough sense of justice, then the courts can avoid
arbitrary decisions, achieving a “rule of law” rather than a “rule of
persons.” That’s the idea, anyway. Throughout your study of torts,
you can constantly ask yourself whether negligence law, through its
structure of elements, is achieving that goal. At times you may find
that the determination with regard to any individual element in any
given case seems to be decided arbitrarily – not according to any
system, but just according to the judge’s “rough sense of justice.” In
fact, one way of defining the proximate causation element, as we will
see in the Palsgraf case, is that it is a placeholder for “a rough sense of
justice.”
At the end of the day, the use of individual elements within the prima
facie case for negligence reflects the common law’s incomplete
project of striving to avoid arbitrariness. The elements give us a
helpful structure to organize our thinking about negligence.
Alongside the prima facie elements of the negligence case are the
principle defenses to negligence, which include:
Comparative negligence – With the defense of comparative
negligence, if the plaintiff’s injury is at least partly attributable
to the plaintiff’s own negligence, then the defendant will not
be liable to the plaintiff for the full amount of the plaintiff’s
damages. If the plaintiff’s relative fault is very large in
comparison to the defendant, then, depending on the

52

jurisdiction, the plaintiff may be barred from any recovery
whatsoever.
Contributory negligence – The defense of contributory
negligence is a more defendant-friendly version of
comparative negligence. It is used in a minority of
jurisdictions in lieu of comparative negligence. Under
contributory negligence, if the plaintiff’s own negligence
contributed even slightly to the injuries sued upon, the
plaintiff is completely barred from any recovery.
Assumption of the risk – Despite the existence of a prima
facie case for negligence, the plaintiff will not be able to
recover if the plaintiff willingly assumed the potential burden
that something bad might happen. Such an assumption of the
risk can implied by the circumstances or expressed in words,
written or oral.
In addition to these defenses, there are generic defenses available –
defenses that are available in all torts cases. These include the statute
of limitations, which causes you to lose your claim if you wait too
long to file. There are also some unique defenses that are only
applicable to certain kinds of defendants, such as charities and
governmental entities. But we will wait to study those until after we
have explored the elements of negligence and the general defenses.
Check-Your-Understanding Questions About Elements
and Defenses
A. A plaintiff is able to establish a preponderance of the elements,
including duty of care, actual causation, and injury. Based on this
showing, will the plaintiff be able to prevail?
B. A defendant’s negligence played a large part in the plaintiff’s
injury, but the plaintiff’s own negligence played a role, too. Because
of the law applicable in this jurisdiction, the plaintiff will entitled to
only a partial recovery. Why?
C. If a defendant undertook the utmost care in trying to prevent the
plaintiff’s injury, but the plaintiff was injured anyway, which element
of the prima facie case will fail?

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D. Must a plaintiff prove reckless, wanton, or willful conduct on the
part of the defendant to establish a prima facie case for negligence?

54

4. An Example of a Negligence
Case
In the following case, you will be able to see how tort law works
within a structure made of causes of action, elements, and affirmative
defenses. The case does a great job, as well, of showing the different
roles of the judge and the jury. It also shows the common-law
method at work – past decisions being applied as precedent to help
decide a new case presenting different facts.

Georgetown v. Wheeler
District of Columbia Court of Appeals
September 19, 2013
__ A.3d __, 2013 WL 5271567. PRESIDENT and
DIRECTORS OF GEORGETOWN COLLEGE, et al.,
Appellants, v. Crystal WHEELER, Appellee. Nos. 12–CV–671,
12–CV–672. Before WASHINGTON, Chief Judge,
BLACKBURNE–RISGBY, Associate Judge, and BELSON,
Senior Judge.
Senior Judge JAMES BELSON:
This is an appeal by a hospital and a physician from a large
judgment against them in a medical malpractice case. Appellee
Crystal Wheeler suffered various medical complications as the
result of a Rathke’s cleft cyst behind her left eye, which went
undetected for nearly ten years despite its appearance on a 1996
MRI report. Wheeler brought a medical-malpractice suit against
the appellants, Marilyn McPherson-Corder, M.D., and the
President
and
Directors
of
Georgetown
College
(“Georgetown”), claiming that their negligence caused the cyst
to go undiscovered. Following a lengthy trial in Superior Court,
a jury awarded Wheeler more than $2.5 million in damages. Dr.
McPherson-Corder and Georgetown now appeal, making four
arguments: (1) the jury’s verdict was irreconcilably inconsistent,
in that it found that the appellants’ negligent failure to detect the
cyst was a proximate cause of Wheeler’s injuries, but also found

55

that Wheeler’s own failure to follow up on the 1996 MRI report,
while negligent, was not a proximate cause; (2) the trial court
erred by admitting Wheeler’s proffered expert testimony, as her
experts’ conclusion that her cyst caused certain gastrointestinal
problems has not been generally accepted in the medical
scientific community; (3) Wheeler’s counsel made improper and
prejudicial statements during her closing argument; and (4) the
jury’s verdict was against the weight of the evidence.
We reject the appellants’ first argument because they waived
their objection to any alleged inconsistency by failing to raise the
issue before the jury’s dismissal. We find their second argument
lacking, as it misstates our standard for the admission of expert
testimony. We likewise find their third argument unpersuasive,
as we see no impropriety in Wheeler’s counsel’s remarks. We do,
however, find merit in one aspect of appellant’s argument on
the weight of the evidence, i.e., insofar as it relates to the jury’s
award of greater future medical costs than the evidence
established. Because the jury awarded $19,450 more than the
record supports, we remand with instructions that the trial court
amend its order to reduce the award in that amount. In all other
respects, we affirm.
I.
Wheeler has long suffered from a litany of health problems,
including serious gastrointestinal difficulties. At several times in
her youth, she was hospitalized due to extreme nausea and
vomiting. These problems persisted throughout her adolescence,
and have lasted well into her adult life.
In 1996, Wheeler began attending college in southern Virginia.
When she returned home to Washington, D.C., the following
summer, she complained of severe headaches to her thenpediatrician, Dr. Marilyn McPherson-Corder. Accordingly, Dr.
McPherson-Corder referred her to a Georgetown University
Hospital pediatric neurologist, Dr. Yuval Shafrir.
Dr. Shafrir saw Wheeler twice that summer, once on July 8, and
again on August 5. During the first visit, Wheeler was also
experiencing leg and ear pain. Because of these other maladies,

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Dr. Shafrir was unable to fully diagnose her headaches. He
prescribed medication for her ear pain, which he concluded was
the result of an ear infection, and asked her to come back in a
few weeks when her symptoms cleared. When she returned, Dr.
Shafrir diagnosed her headaches as migraines. Accordingly, he
instructed her on migraine management, prescribed medication,
and asked her to keep a headache diary. He also noticed “a new
complete blurring of [Wheeler’s] right optic disk,” which
prompted him to give her a prescription and tell her to arrange
an EKG and an MRI through her primary-care physician.
The parties dispute exactly what Dr. Shafrir told Wheeler about
these tests. At trial, Wheeler testified that Dr. Shafrir told her
that both procedures were merely “precautionary,” and that he
would contact her if there were “any concerns with the MRI.”
Dr. Shafrir, however, testified that while he does not have any
independent memory of Wheeler’s visits, he “always” told
patients to contact him within three days of having an MRI if
they did not hear from him. He also testified that whenever he
ordered an MRI he would instruct the patient to come back for
a follow-up visit. He said that this system, which placed the
onus on the patient to follow up on test results, had “never”
failed him. He testified that it would be “impossible” for him to
track down every result independently, in light of the system he
used for having patients get an MRI.
After Wheeler’s second visit, Dr. Shafrir wrote to Dr.
McPherson-Corder, informing her that he asked Wheeler to
undergo an MRI and EKG. Although he indicated that he had
already received the EKG results, which came back “normal,”
he did not mention any MRI results. He also wrote that he
would “like to see [Wheeler] again in my office during her next
college vacation.”
Wheeler obtained a referral for the MRI from Dr. McPhersonCorder’s office. She then had the MRI performed at
Georgetown Hospital on August 16. This MRI revealed a 3–5
mm supersellar cyst behind her left eye – likely a Rathke’s pouch
cyst. At the time, the cyst was not pressuring her pituitary gland,
hypothalamus, or her optic chiasm. Neither Dr. McPherson-

57

Corder nor Dr. Shafrir ever saw the results of this MRI during
the time relevant to this proceeding.
Wheeler’s gastrointestinal issues troubled her throughout
college. She continued to struggle with nausea, vomiting, and
low appetite. After her graduation in 2000, her symptoms only
worsened. She began losing weight, required at least four gastricemptying procedures, and on several occasions had to be
hospitalized. Eventually, her condition deteriorated to the point
that her doctors were forced to insert a feeding tube. In 2003,
she was diagnosed with gastroparesis: a condition that makes it
more difficult for the stomach to empty properly.
Wheeler’s physical decline correlated with her deteriorating
mental health. In 2002, she reported increasing depression and
stress, which she attributed to her physical maladies. In 2003,
her depression worsened, and she began to suffer from panic
attacks. She was diagnosed with depressive disorder in 2004 and
major depression in 2005. She was also diagnosed with a mood
disorder.
Her medical problems came to a head when, in December 2005,
she checked into George Washington University Hospital
(“GWU”) complaining of vertigo and double vision. At that
time, GWU doctors ordered an MRI. Like the 1996 MRI, this
new test showed a cyst-like mass behind Wheeler’s left eye. The
cyst had visibly grown, now measuring approximately 11 x 8.5 x
10 mm, and was causing “mass effects” on Wheeler’s optic
chiasm. Also at this time, GWU doctors diagnosed Wheeler
with thyroid and adrenal deficiencies, as well as abnormally low
levels of human growth hormone.
After her discharge from GWU Hospital, Wheeler saw Dr.
Walter Jean, a neurosurgeon at Georgetown University Hospital.
Dr. Jean asked Wheeler to undergo another MRI. While
examining the results of this MRI in March 2006, Dr. Jean
discovered the 1996 MRI. Comparing the two MRIs, he noted
that Wheeler’s cyst had “progress[ed]” during the intervening
decade, becoming “bigger.” Dr. Jean then performed surgery to
remove the cyst, without complication.

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Wheeler brought suit against Georgetown and Dr. McPhersonCorder on November 24, 2008. Over the course of a thirteenday trial, both sides called several competing medical experts.
Through her experts, Wheeler sought to establish that the cyst
caused or contributed to her hormone deficiencies,
gastroparesis, and mental-health issues. Her experts testified
that, had the cyst been detected and removed earlier, she would
have avoided these problems. The appellants’ experts vigorously
disputed any such causal connection. The appellants also
disputed Wheeler’s claim that Drs. McPherson-Corder and
Shafrir breached their respective duties of care, argued that the
doctors’ actions did not cause Wheeler’s injuries, and contested
the extent of her damages. In addition, they maintained that,
because Wheeler failed to follow up on the MRI results herself,
she was contributorily negligent.
The jury ultimately returned a verdict in Wheeler’s favor. It
found that the doctors breached their respective standards of
care and that their breaches proximately caused Wheeler’s
injuries. It also found that Wheeler was “contributorily
negligent” for not “following Dr. Shafrir’s instructions to follow
up with him after obtaining the MRI.” However, it concluded
that her negligence was not a proximate cause of her injuries. It
awarded her $505,450.37 in past medical expenses, $800,000 in
future medical expenses, and $1,200,000 in noneconomic
damages, for a total of $2,505,450.37.
The verdict form’s first three questions, and the jury’s answers
to them, read:

VERDICT FORM
1(a). Did Yuval Shafrir, M.D., as agent and
employee of Georgetown University Hospital,
breach the standard of care in his care and
treatment of Crystal Wheeler? Yes x; No____.
1(b). Did Marilyn McPherson-Corder, M.D.
breach the standard of care in her care and
treatment of Crystal Wheeler? Yes x; No____.
If you answered “NO” to BOTH Questions
# 1(a) and # 1(b), STOP ANSWERING

59

QUESTIONS

HERE.
THE
FOREPERSON SHOULD SIGN AND
DATE THIS FORM, AND NOTIFY THE
JUDGE.
If you answered “YES” to Question # 1(a),
please answer Question # 2(a).
If you answered “YES” to Question # 1(b),
please answer Question # 2(b).
2(a). Was the breach of the standard of care by
Yuval Shafrir, M.D., as agent and employee of
defendant Georgetown University Hospital, a
proximate cause of injuries and damages to
Crystal Wheeler? Yes x; No____.
2(b). Was the breach of the standard of care by
Marilyn McPherson-Corder, M.D. a proximate
cause of injuries and damages to Crystal
Wheeler? Yes x; No____.
If you answered “NO” to Questions # 2(a)
and # 2(b), STOP ANSWERING
QUESTIONS
HERE.
THE
FOREPERSON SHOULD SIGN AND
DATE THIS FORM, AND NOTIFY THE
JUDGE.
If you answered “YES” to Question # 2(a)
or # 2(b), please proceed to Question # 3.
3(a). Was Crystal Wheeler contributorily
negligent in not following Dr. Shafrir’s
instructions to follow up with him after
obtaining the MRI? Yes x; No____.
****
3(b). Was Crystal Wheeler's negligence a
proximate cause of her injuries and damages?
Yes____; No x.
Following trial, Georgetown and Dr. McPherson-Corder moved
jointly for judgment notwithstanding the verdict, or in the
alternative for a new trial. In support of this motion, they

60

presented four arguments. First, they claimed that the jury could
not rationally have concluded that the negligence of each of the
physicians was a proximate cause of Wheeler’s injuries, but that
her own negligent failure to follow up with Dr. Shafrir was not.
Therefore, they argued, the jury’s verdict was irreconcilably
inconsistent. Second, they asserted that there was no general
acceptance in the medical scientific community of a causal
connection between Rathke’s cleft cysts and gastroparesis.
Accordingly, Wheeler’s expert testimony on that point had been
inadmissible under Dyas v. United States, 376 A.2d 827
(D.C.1977), and Frye v. United States, 54 App.D.C. 46, 293 F.
1013 (1923). Third, they claimed that the jury’s verdict was
against the weight of the evidence. Fourth and finally, they
argued that Wheelers’ attorney improperly appealed to the jury’s
passions during her closing argument.
The trial court denied their motion on April 27, 2012. This
appeal followed.
II.
On appeal, Georgetown and Dr. McPherson-Corder reiterate
the arguments they presented in their post-trial motion. We
address these arguments in turn, beginning with their claim that
the verdict was irreconcilably inconsistent.
(a)
Georgetown and Dr. McPherson-Corder’s first argument on
appeal is essentially the same one they made to the trial court:
that the jury could not rationally have concluded that their
negligent conduct was a proximate cause of Wheeler’s injuries,
but that the contributory negligence it found Wheeler had
committed was not a proximate cause. The trial court rejected
this argument, finding that the verdict was not irreconcilable.
We now affirm, but on alternate grounds. We do not reach the
question of whether the verdict was irreconcilably inconsistent.
Rather, we conclude that the appellants waived their objection
by failing to raise the issue before the jury’s discharge.
In general, a civil jury will return one of three types of verdicts.
In many cases, this will be a standard general verdict. A general

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verdict is “‘[a] verdict by which the jury finds in favor of one
party or the other, as opposed to resolving specific fact
questions.’” Wilbur v. Corr. Servs. Corp., 393 F.3d 1192, 1201
(11th Cir.2004) (quoting Mason v. Ford Motor Co., 307 F.3d 1271,
1274 (11th Cir.2002)); accord BLACK’S LAW DICTIONARY
1696 (9th ed. 2009). The jury will also set damages, where
appropriate. See Mason, supra, 307 F.3d at 1273. When the jury
returns such a verdict, the basis for its decision is usually not
stated explicitly; the jury simply announces a decision for one
side or the other. See Robinson v. Washington Internal Med. Assocs.,
P.C., 647 A.2d 1140, 1144 (D.C.1994) (“Because the jury
returned a general verdict in favor of the defendants, we do not
know whether the jury found that the defendants were not
negligent (or that proximate causation was not proven) or that
the plaintiff was contributorily negligent.”); see also Sinai v.
Polinger Co., 498 A.2d 520, 523 n. 1 (D.C.1985).
In addition, Superior Court Civil Rule 49 authorizes trial courts
to use two alternate verdict types. First, subsection (a) permits
the trial court to submit to the jury “a special verdict in the form
of a special written finding upon each issue of fact.” When
returning such a “special verdict,” the jury answers only the
specific factual questions posed by the court. Trull v. Volkswagen
of Am., Inc., 320 F.3d 1, 4 (1st Cir.2002) (describing special
verdicts under the corresponding Fed.R.Civ.P. 49(a) as setting
forth “written finding[s] upon each issue of fact”); Portage II v.
Bryant Petroleum Corp., 899 F.2d 1514, 1519 (6th Cir.1990) (“A
special verdict is one in which the jury finds all the facts and
then refers the case to the court for a decision on those facts.”
(citation omitted)). Indeed, “[w]ith a special verdict, the jury’s
sole function is to determine the facts; the jury needs no
instruction on the law because the court applies the law to the
facts as found by the jury.” Mason, supra, 307 F.3d at 1274.
Second, subsection (b) authorizes the court to “submit to the
jury, together with appropriate forms for a general verdict,
written interrogatories upon [one] or more issues of fact the
decision of which is necessary to a verdict.” Verdicts submitted
under this section are “hybrid[s]” between standard general
verdicts and special verdicts. Mason, supra, 307 F.3d at 1274; see

62

also Portage II, supra, 899 F.2d at 1520 (“The general verdict with
interrogatories may be viewed as a middle ground between the
special verdict and the general verdict....”). They “permit[ ] a jury
to make written findings of fact and to enter a general verdict,”
Lavoie v. Pacific Press & Shear Co., 975 F.2d 48, 53 (2d Cir.1992),
and are useful when it is necessary to determine “specifically
what the jury found.” Sinai, supra, 498 A.2d at 533 (Nebeker, J.,
concurring).
The distinction between these verdict types is crucial in this
case, because a party waives its objection to any alleged
inconsistency in a general verdict, with or without
interrogatories, if it fails to object before the jury’s discharge. See
District of Columbia Hous. Auth., v. Pinkney, 970 A.2d 854, 868
(D.C.2009) (“DCHA did not raise an objection based on
inconsistent verdicts before the jury was excused, [after
returning general verdict with special interrogatory,] and it
therefore has waived this argument.”); Estate of Underwood v. Nat’l
Credit Union Admin., 665 A.2d 621, 645 (D.C.1995) (explaining
that Rule 49, “particularly section (b), countenances a waiver of
objections to inconsistencies in the verdict that are not pointed
out before the jury is discharged”). That rule, however, may not
apply to special verdicts. See Mason, supra, 307 F.3d at 1274 (“[I]f
the jury rendered inconsistent general verdicts, failure to object
timely waives that inconsistency as a basis for seeking retrial;
inconsistent special verdicts, on the other hand, may support a
motion for a new trial even if no objection was made before the
jury was discharged.”).
In this case, the verdict form itself did not specify the type of
verdict to be rendered. That form, labeled simply “Verdict,” first
directed the jurors to determine whether Dr. Shafrir or Dr.
McPherson-Corder breached the applicable standards of care in
his or her care of and treatment of Wheeler. If the jurors
answered either question with a “yes,” the form instructed them
to determine whether the breach by either or both doctors was a
proximate cause of injuries and damages to Wheeler. If the
jurors answered “yes” again, the form instructed them to then
determine whether Wheeler was “contributorily negligent in not
following Dr. Shafrir’s instructions to follow up with him after

63

obtaining the MRI.” Then, if the jurors found that she was, the
form required them to determine whether Wheeler’s “negligence
[was] a proximate cause of her injuries and damages.”
The appellants do not argue that the verdict form was facially
inconsistent because it allowed the jury to reach different
conclusions as to Wheeler's “contributory negligence,” a
concept which ordinarily encompasses negligence and proximate
cause. Indeed, it is not clear they could do so, given that
appellants' counsel took primary responsibility for drafting the
verdict form. See Preacher v. United States, 934 A.2d 363, 368
(D.C.2007) (“Generally, the invited error doctrine precludes a
party from asserting as error on appeal a course that he or she
has induced the trial court to take.”).
Appellants could have avoided any potential confusion on this
point by simply phrasing the verdict form to ask only whether
Wheeler had been negligent by failing to follow Dr. Shafrir's
instructions (as opposed to contributorily negligent), and whether
her negligence was a proximate cause of her injuries. Such
phrasing would have tracked the language of the applicable
Standardized Instructions. See Standardized Civil Jury
Instructions for the District of Columbia, No. 5–15 (2013 rev.
ed.) (“The defendant alleges that the plaintiff was negligent. The
defendant is not liable for the plaintiff's injuries if the plaintiff's
own negligence is a proximate cause of [his] [her] injuries.”).
The form also called on the jurors to consider the appellants’
assumption-of-the-risk defense. Finally, if the jurors ultimately
found in Wheeler’s favor, the form required them to award
damages.
The verdict form used in this case did not call for a general
verdict of the most basic type. In the past, however, we have at
times referred to similar verdicts as general. See Nimetz v.
Cappadona, 596 A.2d 603, 606 (D.C.1991) (describing as
“general” a verdict form that “require[ed] the jury to make
separate findings only on negligence, proximate cause, and the
award of damages for each plaintiff”). Accord Portage II, supra, 899
F.2d at 1518, 1522 (construing as “general” a verdict form that
asked the jury whether the defendant was negligent and whether

64

the plaintiff was contributorily negligent); Pinkney, supra, 970
A.2d at 868–69 (holding that appellant waived its objection to
inconsistency in remarkably similar verdict by failing to raise it
before jury’s discharge). Nevertheless, this verdict does not
comfortably fit the accepted definition of a “general” verdict,
because it required the jurors to expressly resolve at least one
discrete factual issue: whether Wheeler “follow[ed] Dr. Shafrir’s
instructions to follow up with him after obtaining the MRI.” See,
e.g., Wilbur, supra, 393 F.3d at 1201. Thus, although this verdict
form was similar to others we have called “general,” it was not a
general verdict in its most basic form.
But it is likewise unclear that the form called for a Rule 49(b)
general verdict with interrogatories. True, one portion of the
form suggests such a verdict, because, as noted above, the jury
answered at least one question regarding a discrete factual issue
(i.e., whether Wheeler failed to follow Dr. Shafrir’s instructions),
while still deciding the ultimate issue of liability. See Portage II,
supra, 899 F.2d at 1521 (holding that verdict form that asked jury
several factual questions, but also required it to determine
ultimate liability, called for a general verdict with
interrogatories). But the trial court here did not indicate that it
was exercising its authority under Rule 49(b). Rather, it used a
form simply labeled “Verdict.” And that form did not pose any
purely factual questions. Instead, each question required the jury
to resolve both factual questions and legal issues. But cf. Lavoie,
supra, 975 F.2d at 54 (finding verdict form was a general verdict
with interrogatories despite the “unusual nature” of the form
used).
The issues before us, however, do not require us to choose
between labeling this verdict a general verdict or a Rule 49(b)
general verdict with interrogatories, because we can clearly
determine that it was not a special verdict – the only type of
verdict to which a party might be permitted to raise an
inconsistency objection after the jury’s discharge. Special
verdicts do not require the jury to determine ultimate liability, or
indeed reach any legal conclusions whatsoever. Mason, supra, 307
F.3d at 1274 (“[A] Rule 49(a) special verdict is a verdict by
which the jury finds the facts particularly, and then submits to

65

the court the questions of law arising on them.” (internal
quotation marks omitted)). Indeed, when a trial court uses a
special-verdict form, it generally will not instruct the jury on the
law at all, because the jury will not be called upon to apply the
law. See Bills v. Aseltine, 52 F.3d 596, 605 (6th Cir.1995) (holding
that verdict was general where the jury instructions “discussed
legal matters in detail”); Portage II, supra, 899 F.2d at 1521. In
other words, when rendering a special verdict, the jury only finds
specific facts. BLACK’S LAW DICTIONARY 1697 (9th ed.
2009) (defining “special verdict” as “[a] verdict in which the jury
makes findings only on factual issues submitted to them by the
judge” (emphasis added)).
But here, the jury did much more. Not only did the jury
determine ultimate liability, it explicitly resolved several mixed
legal and factual issues along the way, including negligence,
proximate cause, and assumption of the risk. Cf. Jarvis v. Ford
Motor Co., 283 F.3d 33, 56 (2d Cir.2002) (holding that Federal
Rule 49(a), governing special verdicts, does not apply when “the
jury is required to make determinations not only of issues of fact
but of ultimate liability”). Recognizing that the jury would be
applying law to facts, the trial court thoroughly instructed it on
the applicable legal principles. Cf. Portage II, supra, 899 F.2d at
1521 (“If the written questions submitted to the jury were truly
special verdicts, no instruction on the law, and certainly not one
as detailed would have been given to the jury.”). With these facts
in mind, we can comfortably conclude that, whatever type of
verdict this was, it was not a special verdict.
Accordingly, because the verdict was not special, it was either a
standard general verdict or a Rule 49(b) general verdict with
interrogatories. To preserve an objection to an alleged
inconsistency in either of these types, a party must raise the
argument before the jury is discharged. Here, appellants failed to
do so. Accordingly, they waived their objection to any
inconsistency in the verdict. See, e.g., Underwood, supra, 665 A.2d
at 645; Pinkney, supra, 970 A.2d at 868.
III.

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The appellants next argue that the trial court erred by permitting
Wheeler’s expert witnesses to testify that there was a causal link
between her Rathke’s cleft cyst and her gastroparesis. They
assert that Wheeler failed to demonstrate that such a causal
relationship is generally accepted in the medical scientific
community.
In general, “[t]he trial court has broad discretion to admit or
exclude expert testimony.” Russell v. United States, 17 A.3d 581,
585 (D.C.2011). But this discretion is not unlimited. Before
permitting expert testimony, the trial court must determine that
the proffered testimony meets three threshold requirements:
(1) the subject matter must be so distinctively
related to some science, profession, business or
occupation as to be beyond the ken of the
average layman; (2) the witness must have
sufficient skill, knowledge, or experience in that
field or calling as to make it appear that his
opinion or inference will probably aid the trier
in his search for truth; and (3) expert testimony
is inadmissible if the state of the pertinent art or
scientific knowledge does not permit a
reasonable opinion to be asserted even by an
expert.
Id. at 586 (quoting Dyas v. United States, 376 A.2d 827, 832
(D.C.1977)) (original emphasis omitted) (internal quotation
marks omitted). Here, appellants acknowledge that Wheeler’s
experts satisfied the first two requirements. They argue only that
the experts’ testimony failed to meet the third requirement: that
the “state of the pertinent art or scientific knowledge” permits
the expert to state “a reasonable opinion.” Specifically, they
claim that “Wheeler’s experts were required to demonstrate that
the medical community recognizes and supports their
conclusion that there is a causal link between a Rathke’s cleft
cyst and gastroparesis or hormonal insufficiency and
gastroparesis.”
This argument misstates our admissibility standard. The third
Dyas requirement focuses not on “‘the acceptance of a particular
... conclusion derived from [the] methodology,’” but rather on

67

“the acceptance of the methodology itself.” Minor v. United States,
57 A.3d 406, 420–21 (D.C.2012) (quoting United States v. Jenkins,
887 A.2d 1013, 1022 (D.C.2005)). In other words, “satisfaction
of the third Dyas criterion begins – and ends – with a
determination of whether there is general acceptance of a
particular scientific methodology, not an acceptance, beyond
that, of particular study results based on that methodology.”
Burgess v. United States, 953 A.2d 1055, 1063 n. 12 (D.C.2008)
(quoting Ibn–Tamas v. United States, 407 A.2d 626, 638
(D.C.1979)).
Here, the appellants challenge Wheeler’s experts’
“conclusion[s],” not their methodology. This challenge fails,
because it “focuse[s] on the wrong question.” Minor, supra, 57
A.3d at 420. At trial, Wheeler’s experts testified that they based
their conclusions on case studies and medical literature, which
listed endocrine conditions like hypothyroidism as a cause of
gastroparesis. The appellants contested these conclusions during
trial, and do so again on appeal. But they have offered no
argument that reliance on relevant medical literature, which
according to at least one expert dates back to the 1970s, as well
as case studies appearing in that literature, is not a “generally
accepted” method for forming an opinion regarding medical
causation. Accordingly, we find the appellants’ challenge
unpersuasive.
IV.
Next, the appellants argue that the trial court should have
ordered a new trial based on certain comments Wheeler’s
counsel made during closing arguments. Specifically, they point
to counsel’s statements regarding the applicable standard of
care, which they characterize as an improper send-a-message
argument:
You know, the jury system in our country exists
to protect the community. And in this medical
malpractice case, you will decide what standards
doctors must meet in the community when they
provide care and treatment to patients. You will
decide what standards doctors must meet to

68

protect patient health and safety.... Remember,
the standards ... in the medical community exist
for a reason. They have been developed by
doctors for doctors. They exist to promote
patient safety. They exist to protect patient
health. They’re to provide a medical care system
that above all prevents harm that’s avoidable.
And what these standards are in this community
is what you will be deciding when you go back
to the jury room.
This court will reverse on the basis of improper comments by
counsel only when it is likely that the comments left “‘the jurors
with wrong or erroneous impressions, which were likely to
mislead, improperly influence, or prejudice them to the
disadvantage of the [defendant].’” Psychiatric Inst. of Wash. v.
Allen, 509 A.2d 619, 629 (D.C.1986) (quoting Simpson v. Stein, 52
App.D.C. 137, 139, 284 F. 731, 733 (1922)). Because it has the
advantage of observing the arguments as they occurred, the trial
court is in a better position than this court to determine whether
counsel’s statements were prejudicial. Scott v. Crestar Fin. Corp.,
928 A.2d 680, 690 (D.C.2007). Accordingly, we afford the trial
court’s conclusions on that count broad deference, and will
sustain its ruling so long as it is “rational.” Id.
Here, the trial court concluded that counsel’s statements
“related to the determination the jury was being asked to make
regarding the standard of care,” and found “no impropriety in
the closing argument.” Based on our own reading of counsel’s
comments, we conclude that the trial court’s conclusion was
“rational.” Id. Counsel merely explained the jury’s role in
determining the applicable standard of care. She did not urge the
jury to penalize the appellants based on irrelevant considerations
or to return a verdict that would “send a message.” Accordingly,
we will defer to the trial court’s judgment.
V.
Finally, the appellants argue that the verdict was against the
weight of the evidence. Although their argument is multifaceted,* we focus in particular on their claim that the evidence
did not support the jury’s award of $800,000 in future medical

69

costs. Specifically, the appellants argue that the jury awarded
$19,450 more than Wheeler’s damages expert testified was
necessary, and that this additional award was based on pure
speculation. We agree.
* The appellants also make a broader weight-ofthe-evidence argument, contending that the jury
could not rationally have credited Wheeler’s
experts over their own. We do not think it
necessary to restate the particulars of that
argument here. We note only that it would not
be proper for this court to usurp the jury's
factfinding role by reweighing the evidence in a
manner more to the appellants' liking. “When
the case turns on disputed factual issues and
credibility determinations, the case is for the
jury to decide.” Durphy v. Kaiser Found. Health
Plan of Mid–Atlantic States, Inc., 698 A.2d 459,
465 (D.C.1997); see also Burke v. Scaggs, 867 A.2d
213, 217 (D.C.2005) (holding that judgment as a
matter of law is permissible “only if it is clear
that the plaintiff has not established a prima facie
case” (quoting Haynesworth v. D.H. Stevens Co.,
645 A.2d 1095, 1097 (D.C.1994))).
In general, we do not require plaintiffs to prove their damages
“‘precisely’” or “‘with mathematical certainty.’” District of
Columbia v. Howell, 607 A.2d 501, 506 (D.C.1992) (quoting Garcia
v. Llerena, 599 A.2d 1138, 1142 (D.C.1991)). Nevertheless,
plaintiffs must provide “‘some reasonable basis upon which to
estimate damages.’” Id. The jury may not award damages based
solely on speculation. Zoerb v. Barton Protective Servs., 851 A.2d
465, 470 (D.C.2004). Specifically in the context of futuremedical-expenses awards, we have held that where there is “no
basis upon which the jury could have reasonably calculated or
inferred the cost of [the plaintiff’s] future medical expenses,” the
trial court may not “allow the jury to speculate in this area of
damages.” Romer v. District of Columbia, 449 A.2d 1097, 1100
(D.C.1982).
Here, Wheeler’s damages expert, economist Dr. Richard Lurito,
testified that a lump-sum payment of $780,550 would fully

70

compensate Wheeler for her future medical costs. He reached
this figure by looking at historical trends, projected treatment
costs, and estimated inflation in the general economy. He
testified that he used a 3.75% after-tax discount rate, which he
described as “reasonable and conservative.” He adopted this
rate based on current market conditions, accounting for current
returns on short-and long-term government bonds, and
adjusting for relatively low present interest rates. Then, during
closing arguments, Wheeler’s counsel urged the jury to award
Wheeler $780,550 – the full amount Dr. Lurito recommended.
But the jury was ultimately more generous, rounding Dr.
Lurito’s figure up and awarding Wheeler $800,000 for future
medical expenses – a sum $19,450 in excess of the amount Dr.
Lurito indicated was necessary.
Wheeler points us to no record evidence upon which the jury
could have reasonably awarded this additional $19,450, nor can
we discern any. Wheeler argues that the jury could have inferred
that a larger sum would be necessary based on Dr. Lurito’s
description of his estimate as “conservative.” But there was no
basis in the evidence for the jury to make such an inference.
Although Dr. Lurito described in detail the factors he
considered in his calculations, he did not testify what a more
pessimistic forecast would have entailed, nor did he indicate
how much additional money would be necessary under lessfavorable circumstances. Accordingly, the jury could only
speculate that Wheeler might require an extra $19,450 to cover
her medical costs. Cf. Zoerb, supra, 851 A.2d at 471 (“[E]ven if we
were to conclude – which we do not – that generalizations such
as ‘the sooner the better,’ without evidence as to how much
sooner was how much better, were sufficient to preclude the
direction of a verdict as to liability, the jury would face an
impossible task in attempting to make a rational award of
damages.”).
The jury is not permitted to award damages based on such
speculation. See Romer, supra, 449 A.2d at 1100. Because the
award of an additional $19,450 was not supported by the
evidence, the trial court should have granted a remittitur in that
amount. See Duff v. Werner Enters., Inc., 489 F.3d 727, 730–31 (5th

71

Cir.2007) (ordering trial court to grant remittitur where futuremedical-costs award exceeded “the ‘maximum amount
calculable from the evidence’” (quoting Carlton v. H.C. Price Co.,
640 F.2d 573, 578 (5th Cir.1981))). Accordingly, we remand with
instructions for the trial court to amend its order, reducing the
future-medical-expenses award by $19,450 to accord with the
evidence.
So ordered.

Check-Your-Understanding Questions About

Georgetown v. Wheeler
A. What is the difference between the verdict and the judgment?
B. What is the procedural posture of the case?
C. The trial court’s rulings on what motions are being reviewed?
D. What is an example of a common-law doctrine that is applied?
E. What is an example of a rule of procedure that is applied?
F. What is an example of a standard of review that is applied?

72

5. When and to Whom is a Duty
of Care Owed
“A danger foreseen is half-avoided.”
– Cheyenne Proverb

Introduction
The first element that must be established by a plaintiff in proving a
negligence case is that the defendant owed the plaintiff a duty of care.
If the defendant did not owe the plaintiff a duty of care, then even if
the defendant was careless and caused injury to the plaintiff, there
will be no recovery in negligence.
Suppose someone asks you for one of your kidneys, explaining that
otherwise they will die. In terms of negligence doctrine, you do not
owe this person a duty to hand over a kidney. And even if the person
dies as a result of not getting one of your kidneys, there is no prima
facie case against you for negligence. You can probably intuit that
there is not a good cause of action here, but it is instructive to
consider the explicit reason. Check off the elements: There is an
injury. There is causation. Those are not lacking. What is lacking is
the duty of care.
Now, suppose you are carelessly operating a rocket-powered tricycle
and, thanks to your lack of care, you careen out of control, hitting
and injuring a pedestrian who was walking on a sidewalk. You owed
the pedestrian a duty of care, and you breached that duty. And that
breach caused an injury. Thus, the pedestrian will be able to establish
a prima facie case for negligence. All the elements are in place.
In this chapter, the key question is when and to whom is a duty of
care owed. In other words: Is there a duty? The question of what is
required by a duty of care – in other words, just how careful do you
have to be – is a question for the next chapter, in which we will talk
about breach of duty.

73

Whether or not there is a duty of care is generally considered a
question of law, meaning it is a matter for the judge to decide. Thus, the
doctrine of duty of care can be used to prevent a jury from hearing a
case that might otherwise result in a substantial award of damages.

The Essential Concept: Foreseeability
The essential concept in defining the duty of care in negligence is
foreseeability. A defendant is said to owe a duty of care to all
foreseeable plaintiffs for all foreseeable harm.
Case: Weirum v. RKO
In this case there is carelessness, injury, actual and proximate
causation. The only open question is whether a duty of care is owed.

Weirum v. RKO General, Inc.
Supreme Court of California
August 21, 1975
15 Cal.3d 40. RONALD A. WEIRUM et al., Plaintiffs and
Appellants, v. RKO GENERAL, INC., Defendant and
Appellant; MARSHA L. BAIME, Defendant and Respondent.
L.A. No. 30452. In Bank. Opinion by Mosk, J., expressing the
unanimous view of the court. Wright, C. J., McComb, J.,
Tobriner, J., Sullivan, J., Clark, J., and Richardson, J., concurred.
Justice STANLEY MOSK:
A rock radio station with an extensive teenage audience
conducted a contest which rewarded the first contestant to
locate a peripatetic disc jockey. Two minors driving in separate
automobiles attempted to follow the disc jockey’s automobile to
its next stop. In the course of their pursuit, one of the minors
negligently forced a car off the highway, killing its sole occupant.
In a suit filed by the surviving wife and children of the decedent,
the jury rendered a verdict against the radio station. We now
must determine whether the station owed decedent a duty of
due care.
The facts are not disputed. Radio station KHJ is a successful
Los Angeles broadcaster with a large teenage following. At the
time of the accident, KHJ commanded a 48 percent plurality of

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the teenage audience in the Los Angeles area. In contrast, its
nearest rival during the same period was able to capture only 13
percent of the teenage listeners. In order to attract an even
larger portion of the available audience and thus increase
advertising revenue, KHJ inaugurated in July of 1970 a
promotion entitled “The Super Summer Spectacular.” The
“spectacular,” with a budget of approximately $40,000 for the
month, was specifically designed to make the radio station
“more exciting.” Among the programs included in the
“spectacular” was a contest broadcast on July 16, 1970, the date
of the accident.
On that day, Donald Steele Revert, known professionally as
“The Real Don Steele,” a KHJ disc jockey and television
personality, traveled in a conspicuous red automobile to a
number of locations in the Los Angeles metropolitan area.
Periodically, he apprised KHJ of his whereabouts and his
intended destination, and the station broadcast the information
to its listeners. The first person to physically locate Steele and
fulfill a specified condition received a cash prize. The
conditions varied from the giving of a correct response to a
question to the possession of particular items of clothing. In
addition, the winning contestant participated in a brief interview
on the air with “The Real Don Steele.” The following excerpts
from the July 16 broadcast illustrate the tenor of the contest
announcements:
9:30 and The Real Don Steele is back on his feet
again with some money and he is headed for the
Valley. Thought I would give you a warning so
that you can get your kids out of the street.
The Real Don Steele is out driving on – could
be in your neighborhood at any time and he’s
got bread to spread, so be on the lookout for
him.
The Real Don Steele is moving into Canoga
Park – so be on the lookout for him. I’ll tell you
what will happen if you get to The Real Don
Steele. He’s got twenty-five dollars to give away

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if you can get it ... and baby, all signed and
sealed and delivered and wrapped up.
10:54 – The Real Don Steele is in the Valley
near the intersection of Topanga and Roscoe
Boulevard, right by the Loew’s Holiday Theater
– you know where that is at, and he’s standing
there with a little money he would like to give
away to the first person to arrive and tell him
what type car I helped Robert W. Morgan give
away yesterday morning at KHJ. What was the
make of the car. If you know that, split.
Intersection of Topanga and Roscoe Boulevard
– right nearby the Loew’s Holiday Theater –
you will find The Real Don Steele. Tell him and
pick up the bread.
In Van Nuys, 17-year-old Robert Sentner was listening to KHJ
in his car while searching for “The Real Don Steele.” Upon
hearing that “The Real Don Steele” was proceeding to Canoga
Park, he immediately drove to that vicinity. Meanwhile, in
Northridge, 19-year-old Marsha Baime heard and responded to
the same information. Both of them arrived at the Holiday
Theater in Canoga Park to find that someone had already
claimed the prize. Without knowledge of the other, each decided
to follow the Steele vehicle to its next stop and thus be the first
to arrive when the next contest question or condition was
announced.
For the next few miles the Sentner and Baime cars jockeyed for
position closest to the Steele vehicle, reaching speeds up to 80
miles an hour. It is not contended that the Steele vehicle at any
time exceeded the speed limit. About a mile and a half from
the Westlake offramp the two teenagers heard the following
broadcast: “11:13 – The Real Don Steele with bread is heading
for Thousand Oaks to give it away. Keep listening to KHJ ....
The Real Don Steele out on the highway – with bread to give
away – be on the lookout, he may stop in Thousand Oaks and
may stop along the way .... Looks like it may be a good stop
Steele – drop some bread to those folks.”

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The Steele vehicle left the freeway at the Westlake offramp.
Either Baime or Sentner, in attempting to follow, forced
decedent’s car onto the center divider, where it overturned.
Baime stopped to report the accident. Sentner, after pausing
momentarily to relate the tragedy to a passing peace officer,
continued to pursue Steele, successfully located him and
collected a cash prize.
Decedent’s wife and children brought an action for wrongful
death against Sentner, Baime, RKO General, Inc. as owner of
KHJ, and the maker of decedent’s car. Sentner settled prior to
the commencement of trial for the limits of his insurance policy.
The jury returned a verdict against Baime and KHJ in the
amount of $300,000 and found in favor of the manufacturer of
decedent’s car. KHJ appeals from the ensuing judgment and
from an order denying its motion for judgment notwithstanding
the verdict. Baime did not appeal.
The primary question for our determination is whether
defendant owed a duty to decedent arising out of its broadcast
of the giveaway contest. The determination of duty is primarily a
question of law. It is the court’s “expression of the sum total of
those considerations of policy which lead the law to say that the
particular plaintiff is entitled to protection.” (Prosser, Law of
Torts (4th ed. 1971) pp. 325-326.) Any number of considerations
may justify the imposition of duty in particular circumstances,
including the guidance of history, our continually refined
concepts of morals and justice, the convenience of the rule, and
social judgment as to where the loss should fall. (Prosser, Palsgraf
Revisited (1953) 52 MICH. L. REV. 1, 15.) While the question
whether one owes a duty to another must be decided on a caseby-case basis, every case is governed by the rule of general
application that all persons are required to use ordinary care to
prevent others from being injured as the result of their conduct.
However, foreseeability of the risk is a primary consideration in
establishing the element of duty. Defendant asserts that the
record here does not support a conclusion that a risk of harm to
decedent was foreseeable.

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While duty is a question of law, foreseeability is a question of
fact for the jury. The verdict in plaintiffs’ favor here necessarily
embraced a finding that decedent was exposed to a foreseeable
risk of harm. It is elementary that our review of this finding is
limited to the determination whether there is any substantial
evidence, contradicted or uncontradicted, which will support the
conclusion reached by the jury.
We conclude that the record amply supports the finding of
foreseeability. These tragic events unfolded in the middle of a
Los Angeles summer, a time when young people were free from
the constraints of school and responsive to relief from vacation
tedium. Seeking to attract new listeners, KHJ devised an
“exciting” promotion. Money and a small measure of
momentary notoriety awaited the swiftest response. It was
foreseeable that defendant’s youthful listeners, finding the prize
had eluded them at one location, would race to arrive first at the
next site and in their haste would disregard the demands of
highway safety.
Indeed, “The Real Don Steele” testified that he had in the past
noticed vehicles following him from location to location. He
was further aware that the same contestants sometimes
appeared at consecutive stops. This knowledge is not rendered
irrelevant, as defendant suggests, by the absence of any prior
injury. Such an argument confuses foreseeability with hindsight,
and amounts to a contention that the injuries of the first victim
are not compensable. “The mere fact that a particular kind of an
accident has not happened before does not ... show that such
accident is one which might not reasonably have been
anticipated.” (Ridley v. Grifall Trucking Co. (1955) 136 Cal.App.2d
682, 686.) Thus, the fortuitous absence of prior injury does not
justify relieving defendant from responsibility for the
foreseeable consequences of its acts.
It is of no consequence that the harm to decedent was inflicted
by third parties acting negligently. Defendant invokes the maxim
that an actor is entitled to assume that others will not act
negligently. This concept is valid, however, only to the extent
the intervening conduct was not to be anticipated. If the

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likelihood that a third person may react in a particular manner is
a hazard which makes the actor negligent, such reaction whether
innocent or negligent does not prevent the actor from being
liable for the harm caused thereby. Here, reckless conduct by
youthful contestants, stimulated by defendant’s broadcast,
constituted the hazard to which decedent was exposed.
It is true, of course, that virtually every act involves some
conceivable danger. Liability is imposed only if the risk of harm
resulting from the act is deemed unreasonable – i.e., if the
gravity and likelihood of the danger outweigh the utility of the
conduct involved.
We need not belabor the grave danger inherent in the contest
broadcast by defendant. The risk of a high speed automobile
chase is the risk of death or serious injury. Obviously, neither
the entertainment afforded by the contest nor its commercial
rewards can justify the creation of such a grave risk. Defendant
could have accomplished its objectives of entertaining its
listeners and increasing advertising revenues by adopting a
contest format which would have avoided danger to the
motoring public.
Defendant’s contention that the giveaway contest must be
afforded the deference due society’s interest in the First
Amendment is clearly without merit. The issue here is civil
accountability for the foreseeable results of a broadcast which
created an undue risk of harm to decedent. The First
Amendment does not sanction the infliction of physical injury
merely because achieved by word, rather than act.
We are not persuaded that the imposition of a duty here will
lead to unwarranted extensions of liability. Defendant is fearful
that entrepreneurs will henceforth be burdened with an
avalanche of obligations: an athletic department will owe a duty
to an ardent sports fan injured while hastening to purchase one
of a limited number of tickets; a department store will be liable
for injuries incurred in response to a “while-they-last” sale. This
argument, however, suffers from a myopic view of the facts
presented here. The giveaway contest was no commonplace
invitation to an attraction available on a limited basis. It was a

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competitive scramble in which the thrill of the chase to be the
one and only victor was intensified by the live broadcasts which
accompanied the pursuit. In the assertedly analogous situations
described by defendant, any haste involved in the purchase of
the commodity is an incidental and unavoidable result of the
scarcity of the commodity itself. In such situations there is no
attempt, as here, to generate a competitive pursuit on public
streets, accelerated by repeated importuning by radio to be the
very first to arrive at a particular destination. Manifestly the
“spectacular” bears little resemblance to daily commercial
activities.~
The judgment and the orders appealed from are affirmed.~

Questions to Ponder About Weirum v. RKO
A. Does the duty-of-care concept work well to provide an outer
boundary for what is recoverable in negligence? What might you
replace it with?
B. The court held that the accident was foreseeable. If it was
foreseeable, why do you think the radio station personnel staged the
contest? Were they greedy? Were they ignorant? Were they in denial?
Or does “foreseeable” mean something different for the court than it
does for an individual? If so, should it?
C. How could KHJ have changed the contest to avoid liability?

Some Historical Notes About Weirum v. RKO
A. Mosk’s legacy: Justice Mosk is the namesake of the Stanley M.
Mosk Courthouse, the main courthouse of the Los Angeles County
Superior Court for civil litigation. (The Clara Shortridge Foltz
courthouse, site of many famous celebrity criminal trials, is a couple
of blocks to the east.)
B. Boss radio: KHJ was a legendary AM radio station of the Top-40
format. Most notably, KHJ was the progenitor of the “Boss Radio”
style that spread throughout the nation in the early 1970s. The
Everclear song “AM Radio,” released in 2000, pays homage to KHJ
and even includes a KHJ jingle at the beginning. KHJ was a

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launching pad for many present-day personalities, including Rick
Dees, Shadoe Stevens, and Charlie Tuna.
Don Steele was one of the most important personalities behind the
boss sound, and he is considered to have been one of the greatest
personalities in the history of L.A. radio. To really understand Steele’s
boss-jock style, you need to listen to tapes of his radio shows from
the early 70s. To say that he was extremely energetic is putting it
mildly. His patter commonly included rapid-fire nonsensical rhymes
and frequent outbursts of “Yeah, baby!” Steele died in 1997 at age 61
of lung cancer.
Doctrinal Wiggle Room
One way to think about the elements of a negligence case is that they
are the law’s way of providing an analytical structure that will pare
down the universe of possible negligence matters into a subset of
cases where awarding compensation is in tune with our basic
intuitions of fairness. But when you try to construct simply stated
rules that will both correspond with a sense of justice and work in
any context, you run into the inevitable need for wiggle room. In tort
law, the elements of duty of care and proximate causation do the
most to provide that wiggle room, with duty of care being primarily
the domain of judge, and proximate causation being generally the
province of the jury.
The duty of care can be defined as an obligation for people to
exercise reasonable care to avoid foreseeable harm to others. It is a
frustratingly fuzzy definition. So, if you feel like you are having a hard
time understanding the concept of duty, do not worry. It probably
just means that you are reading closely and thinking deeply. The dutyof-care standard is vague out of necessity.
The definition of the duty of care is probably less important than the
way it is employed by courts. Justice Mosk describes the role of the
duty of care with considerable candor when he says, “It is the court’s
‘expression of the sum total of those considerations of policy which
lead the law to say that the particular plaintiff is entitled to
protection.’”

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Duty of Care in Entertainment Industry Cases
Weirum v. RKO is frequently cited in negligence cases where the
entertainment media is blamed for death or injury. In other cases,
however, plaintiffs have not tended to fare as well as the Weirum
family. For example, in McCollum v. CBS, Inc., 202 Cal.App.3d 989
(1988), a 19-year-old killed himself with a gun after listening to the
Ozzy Osbourne song, “Suicide Solution.” The song includes the
lyrics “Suicide is the only way out” and “Get the gun and try it.
Shoot, shoot, shoot … ” The California Court of Appeals rejected
the plaintiffs’ attempt to use Weirum v. RKO to show a duty of care.
While acknowledging Weirum’s broad language, the court found the
case to be of limited applicability, concluding that while the accident
in Weirum was foreseeable, the Osbourne fan’s suicide was not.
The court also noted the separation in time involved in recorded
music versus live radio: “Osbourne’s music and lyrics had been
recorded and produced years before. There was not a ‘real time’
urging of listeners to act in a particular manner. There was no
dynamic interaction with, or live importuning of, particular listeners.”
Emphasizing the policy implications of their decision, the court
added, “[I]t is simply not acceptable to a free and democratic society
to impose a duty upon performing artists to limit and restrict their
creativity in order to avoid the dissemination of ideas in artistic
speech which may adversely affect emotionally troubled individuals.
Such a burden would quickly have the effect of reducing and limiting
artistic expression to only the broadest standard of taste and
acceptance and the lowest level of offense, provocation and
controversy.”

Problem: WZX Cash Patrol
Suppose you are an attorney for radio station WZX. The station is
considering staging a “Cash Patrol” contest in which a disc jockey
will drive around the city in an unmarked vehicle looking for cars
with a WZX bumper sticker. When the disc jockey has found such a
car, the disc jockey will go on the air via a remote hookup, describe
the car she or he is following, and ask that car to pull over to receive
a $1,000 cash prize. How would you advise WZX on its liability risk?

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Should they do the contest or pull the plug? Does it matter that
WZX’s sister station in another city tried the promotion and it
resulted in a ratings spike that substantially increased station
revenues?
Case: Kubert v. Colonna
This case explores the duty of care in the context of texting while
driving, a leading-edge area in negligence law.

Kubert v. Colonna
Superior Court of New Jersey, Appellate Division
August 27, 2013
__ A.3d __, 2013 WL 4512313 Linda KUBERT and David
Kubert, Plaintiffs–Appellants, v. Kyle BEST, Susan R. Best,
Executrix of the Estate of Nickolas J. Best, Deceased,
Defendants, and Shannon Colonna, Defendant–Respondent.
Before Judges ASHRAFI, ESPINOSA and GUADAGNO.
Espinosa, J.A.D., filed a concurring opinion, not reproduced
here.
Judge VICTOR ASHRAFI:
Plaintiffs Linda and David Kubert were grievously injured by an
eighteen-year-old driver who was texting while driving and
crossed the center-line of the road. Their claims for
compensation from the young driver have been settled and are
no longer part of this lawsuit. Plaintiffs appeal the trial court’s
dismissal of their claims against the driver’s seventeen-year-old
friend who was texting the driver much of the day and sent a
text message to him immediately before the accident.~
We must determine as a matter of civil common law whether
one who is texting from a location remote from the driver of a
motor vehicle can be liable to persons injured because the driver
was distracted by the text. We hold that the sender of a text
message can potentially be liable if an accident is caused by
texting, but only if the sender knew or had special reason to
know that the recipient would view the text while driving and
thus be distracted.

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In this appeal, we must also decide whether plaintiffs have
shown sufficient evidence to defeat summary judgment in favor
of the remote texter. We conclude they have not. We affirm the
trial court’s order dismissing plaintiffs’ complaint against the
sender of the text messages, but we do not adopt the trial
court’s reasoning that a remote texter does not have a legal duty
to avoid sending text messages to one who is driving.
I.
The Kuberts’ claims against defendant Shannon Colonna, the
teenage sender of the texts, were never heard by a jury. Since
this appeal comes to us from summary judgment in favor of
Colonna, we view all the evidence and reasonable inferences
that can be drawn from the evidence favorably to plaintiffs, the
Kuberts.
On the afternoon of September 21, 2009, David Kubert was
riding his motorcycle, with his wife, Linda Kubert, riding as a
passenger. As they came south around a curve on Hurd Street in
Mine Hill Township, a pick-up truck being driven north by
eighteen-year-old Kyle Best crossed the double center line of the
roadway into their lane of travel. David Kubert attempted to
evade the pick-up truck but could not. The front driver’s side of
the truck struck the Kuberts and their motorcycle. The collision
severed, or nearly severed, David’s left leg. It shattered Linda’s
left leg, leaving her fractured thighbone protruding out of the
skin as she lay injured in the road.
Best stopped his truck, saw the severity of the injuries, and
called 911. The time of the 911 call was 17:49:15, that is, fifteen
seconds after 5:49 p.m. Best, a volunteer fireman, aided the
Kuberts to the best of his ability until the police and emergency
medical responders arrived. Medical treatment could not save
either victim’s leg. Both lost their left legs as a result of the
accident.
After the Kuberts filed this lawsuit, their attorney developed
evidence to prove Best’s activities on the day of the accident. In
September 2009, Best and Colonna were seeing each other
socially but not exclusively; they were not boyfriend and

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girlfriend. Nevertheless, they texted each other many times each
day. Best’s cell phone record showed that he and Colonna
texted each other sixty-two times on the day of the accident,
about an equal number of texts originating from each. They
averaged almost fourteen texts per hour for the four-and-a-halfhour, non-consecutive time-span they were in telephone contact
on the day of the accident.
The telephone record also showed that, in a period of less than
twelve hours on that day, Best had sent or received 180 text
messages. In her deposition, Colonna acknowledged that it was
her habit also to text more than 100 times per day. She said:
“I’m a young teenager. That’s what we do.” She also testified
that she generally did not pay attention to whether the recipient
of her texts was driving a car at the time or not. She thought it
was “weird” that plaintiffs’ attorney was trying to pin her down
on whether she knew that Best was driving when she texted
him.
During the day of the accident, a Monday, Best and Colonna
exchanged many text messages in the morning, had lunch
together at his house, and watched television until he had to go
to his part-time job at a YMCA in Randolph Township. Our
record does not indicate why Colonna was not in school that
day. Best was a student at a community college and also worked
part-time. The time record from the YMCA showed that Best
punched in on a time clock at 3:35 p.m. At 3:49 p.m., Colonna
texted him, but he did not respond at that time. He punched out
of work at 5:41. A minute later, at 5:42, Best sent a text to
Colonna. He then exchanged three text messages with his
father, testifying at his deposition that he did so while in the
parking lot of the YMCA and that the purpose was to notify his
parents he was coming home to eat dinner with them.
The accident occurred about four or five minutes after Best
began driving home from the YMCA. At his deposition, Best
testified that he did not text while driving—meaning that it was
not his habit to text when he was driving. He testified falsely at
first that he did not text when he began his drive home from the
YMCA on the day of the accident. But he was soon confronted

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with the telephone records, which he had seen earlier, and then
he admitted that he and Colonna exchanged text messages
within minutes of his beginning to drive.
The sequence of texts between Best and Colonna in the minutes
before and after the accident is shown on the following chart.~
Sent

Sender

Received Recipient

5:42:03

Best

5:42:12

Colonna

5:47:49

Best

5:47:56

Colonna

5:48:14

Colonna 5:48:23

Best

5:48:58

Best

Colonna

(5:49:15

911 Call)

5:49:20

Colonna 5:55:30

Best

5:54:08

Colonna 5:55:33

Best

5:49:07

This sequence indicates the precise time of the accident – within
seconds of 5:48:58. Seventeen seconds elapsed from Best’s
sending a text to Colonna and the time of the 911 call after the
accident. Those seconds had to include Best’s stopping his
vehicle, observing the injuries to the Kuberts, and dialing 911. It
appears, therefore, that Best collided with the Kuberts’
motorcycle immediately after sending a text at 5:48:58. It can be
inferred that he sent that text in response to Colonna’s text to
him that he received twenty-five seconds earlier. Finally, it
appears that Best initiated the texting with Colonna as he was
about to and after he began to drive home.
Missing from the evidence is the content of the text messages.
Plaintiffs were not able to obtain the messages Best and
Colonna actually exchanged, and Best and Colonna did not
provide that information in their depositions. The excerpts of
Best’s deposition that have been provided to us for this appeal
do not include questions and answers about the content of his
text messages with Colonna late that afternoon. When
Colonna’s deposition was taken sixteen months after the
accident, she testified she did not remember her texts that day.
Despite the fact that Best did not respond to her last two texts

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at 5:55 p.m., and despite her learning on the same evening that
he had been involved in a serious accident minutes before he
failed to respond to her, Colonna testified that she had “no
idea” what the contents of her text messages with Best were that
afternoon.
After plaintiffs learned of Colonna’s involvement and added her
to their lawsuit, she moved for summary judgment. Her attorney
argued to the trial court that Colonna had no liability for the
accident because she was not present at the scene, had no legal
duty to avoid sending a text to Best when he was driving, and
further, that she did not know he was driving. The trial judge
reviewed the evidence and the arguments of the attorneys,
conducted independent research on the law, and ultimately
concluded that Colonna did not have a legal duty to avoid
sending a text message to Best, even if she knew he was driving.
The judge dismissed plaintiffs’ claims against Colonna.
II.
On appeal before us, plaintiffs argue that Colonna is potentially
liable to them if a jury finds that her texting was a proximate
cause of the accident. They argue that she can be found liable
because she aided and abetted Best’s unlawful texting while he
was driving, and also because she had an independent duty to
avoid texting to a person who was driving a motor vehicle. They
claim that a jury can infer from the evidence that Colonna knew
Best was driving home from his YMCA job when she texted
him at 5:48:14, less than a minute before the accident.
We are not persuaded by plaintiffs’ arguments as stated, but we
also reject defendant’s argument that a sender of text messages
never has a duty to avoid texting to a person driving a vehicle.
We conclude that a person sending text messages has a duty not
to text someone who is driving if the texter knows, or has
special reason to know, the recipient will view the text while
driving. But we also conclude that plaintiffs have not presented
sufficient evidence to prove that Colonna had such knowledge
when she texted Best immediately before the accident.~

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We first address generally the nature of a duty imposed by the
common law.
In a lawsuit alleging that a defendant is liable to a plaintiff
because of the defendant’s negligent conduct, the plaintiff must
prove four things: (1) that the defendant owed a duty of care to
the plaintiff, (2) that the defendant breached that duty, (3) that
the breach was a proximate cause of the plaintiff’s injuries, and
(4) that the plaintiff suffered actual compensable injuries as a
result. The plaintiff bears the burden of proving each of these
four “core elements” of a negligence claim.
Because plaintiffs in this case sued Best and eventually settled
their claims against him, it is important to note that the law
recognizes that more than one defendant can be the proximate
cause of and therefore liable for causing injury. Whether a duty
exists to prevent harm is not controlled by whether another
person also has a duty, even a greater duty, to prevent the same
harm.~
“A duty is an obligation imposed by law requiring one party ‘to
conform to a particular standard of conduct toward another.’”
Acuna v. Turkish, 192 N.J. 399, 413 (2007) (quoting Prosser &
Keeton on Torts: Lawyer’s Edition § 53, at 356 (5th ed.1984)); see
also Restatement (Second) of Torts § 4 (1965) (“The word ‘duty’ ...
denote[s] the fact that the actor is required to conduct himself in
a particular manner at the risk that if he does not do so he
becomes subject to liability to another to whom the duty is
owed for any injury sustained by such other, of which that
actor’s conduct is a legal cause.”).
Whether a duty of care exists “is generally a matter for a court to
decide,” not a jury. The “fundamental question [is] whether the
plaintiff’s interests are entitled to legal protection against the
defendant’s conduct.” J.S. v. R.T.H., 155 N.J. 330, 338 (1998).
The New Jersey Supreme Court recently analyzed the common
law process by which a court decides whether a legal duty of
care exists to prevent injury to another. Estate of Desir ex. rel.
Estiverne v. Vertus, ––– N.J. –––– (2013). The Court reviewed
precedents developed over the years in our courts and restated

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the “most cogent explanation of the principles that guide [the
courts] in determining whether to recognize the existence of a
duty of care”:
“[w]hether a person owes a duty of reasonable
care toward another turns on whether the
imposition of such a duty satisfies an abiding
sense of basic fairness under all of the
circumstances in light of considerations of
public policy. That inquiry involves identifying,
weighing, and balancing several factors—the
relationship of the parties, the nature of the
attendant risk, the opportunity and ability to
exercise care, and the public interest in the
proposed solution.... The analysis is both very
fact-specific and principled; it must lead to
solutions that properly and fairly resolve the
specific case and generate intelligible and
sensible rules to govern future conduct.”
The Court emphasized that the law must take into account
“generally applicable rules to govern societal behaviors,” not just
an “outcome that reaches only the particular circumstances and
parties before the Court today[.]” The Court described all of
these considerations as “a full duty analysis” to determine
whether the law recognizes a duty of care in the particular
circumstances of a negligence case.~
Plaintiffs argue~ that Colonna independently had a duty not to
send texts to a person who she knew was driving a vehicle. They
have not cited a case in New Jersey or any other jurisdiction that
so holds, and we have not found one in our own research.
The trial court cited one case that involved distraction of the
driver by text messages, Durkee v. C.H. Robinson Worldwide,
Inc., 765 F.Supp.2d 742 (W.D.N.C.2011). In Durkee, the plaintiffs
were injured when a tractor-trailer rear-ended their car. In
addition to the truck driver and other defendants, they sued the
manufacturer of a text-messaging device that was installed in the
tractor-trailer. They claimed the device was designed defectively
because it could be viewed while the truck driver was driving
and it distracted the driver immediately before the accident that

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injured them. The federal court dismissed the plaintiffs’ claims
against the manufacturer of the device, holding that it was the
driver’s duty to avoid distraction. Since other normal devices in
a motor vehicle could distract the driver, such as a radio or GPS
device, attributing a design defect to the product would have too
far-reaching an effect. It would allow product liability lawsuits
against manufacturers of ordinary devices found in many motor
vehicles and hold them liable for a driver’s careless use of the
product.
Similarly, at least two state courts have declined to hold
manufacturers of cell phones liable for failing to design their
products to prevent harm caused when drivers are distracted by
use of the phones.
We view Durkee and these state cases as appropriately leading to
the conclusion that one should not be held liable for sending a
wireless transmission simply because some recipient might use
his cell phone unlawfully and become distracted while driving.
Whether by text, email, Twitter, or other means, the mere
sending of a wireless transmission that unidentified drivers may
receive and view is not enough to impose liability.
Having considered the competing arguments of the parties, we
also conclude that liability is not established by showing only
that the sender directed the message to a specific identified
recipient, even if the sender knew the recipient was then driving.
We conclude that additional proofs are necessary to establish
the sender’s liability, namely, that the sender also knew or had
special reason to know that the driver would read the message
while driving and would thus be distracted from attending to the
road and the operation of the vehicle. We reach these
conclusions by examining the law in analogous circumstances
and applying “a full duty analysis” as discussed in Desir,
supra, slip op. at 24.
A section of the Restatement that the parties have not referenced
provides:
An act is negligent if the actor intends it to
affect, or realizes or should realize that it is
likely to affect, the conduct of another, a third

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person, or an animal in such a manner as to
create an unreasonable risk of harm to the
other.
[Restatement § 303.]
To illustrate this concept, the Restatement provides the
following hypothetical example:
A is driving through heavy traffic. B, a
passenger in the back seat, suddenly and
unnecessarily calls out to A, diverting his
attention, thus causing him to run into the car
of C. B is negligent toward C.
[Restatement § 303, comment d, illustration 3.]
We have recognized that a passenger who distracts a driver can
be held liable for the passenger’s own negligence in causing an
accident. In other words, a passenger in a motor vehicle has a
duty “not to interfere with the driver’s operations.”
One form of interference with a driver might be obstructing his
view or otherwise diverting his attention from the tasks of
driving. It would be reasonable to hold a passenger liable for
causing an accident if the passenger obstructed the driver’s view
of the road, for example, by suddenly holding a piece of paper
in front of the driver’s face and urging the driver to look at what
is written or depicted on the paper. The same can be said if a
passenger were to hold a cell phone with a text message or a
picture in front of the driver’s eyes. Such distracting conduct
would be direct, independent negligence of the passenger~.
Here, of course, Colonna did not hold Best’s cell phone in front
of his eyes and physically distract his view of the road.
The more relevant question is whether a passenger can be liable
not for actually obstructing the driver’s view but only for urging
the driver to take his eyes off the road and to look at a
distracting object. We think the answer is yes, but only if the
passenger’s conduct is unreasonably risky because the passenger
knows, or has special reason to know, that the driver will in fact
be distracted and drive negligently as a result of the passenger’s
actions.

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It is the primary responsibility of the driver to obey the law and
to avoid distractions. Imposing a duty on a passenger to avoid
any conduct that might theoretically distract the driver would
open too broad a swath of potential liability in ordinary and
innocent circumstances. As the Supreme Court stated in Desir,
courts must be careful not to “create a broadly worded duty and
... run the risk of unintentionally imposing liability in situations
far beyond the parameters we now face.” “The scope of a duty
is determined under ‘the totality of the circumstances,’ and must
be ‘reasonable’ under those circumstances.” J.S., 155 N.J. at 339.
“Foreseeability of the risk of harm is the foundational element
in the determination of whether a duty exists.” Id. at 337.
“Foreseeability, in turn, is based on the defendant’s knowledge
of the risk of injury.”
It is foreseeable that a driver who is actually distracted by a text
message might cause an accident and serious injuries or death,
but it is not generally foreseeable that every recipient of a text
message who is driving will neglect his obligation to obey the
law and will be distracted by the text. Like a call to voicemail or
an answering machine, the sending of a text message by itself
does not demand that the recipient take any action. The sender
should be able to assume that the recipient will read a text
message only when it is safe and legal to do so, that is, when not
operating a vehicle. However, if the sender knows that the
recipient is both driving and will read the text immediately, then
the sender has taken a foreseeable risk in sending a text at that
time. The sender has knowingly engaged in distracting conduct,
and it is not unfair also to hold the sender responsible for the
distraction.
“When the risk of harm is that posed by third persons, a
plaintiff may be required to prove that defendant was in a
position to ‘know or have reason to know, from past
experience, that there [was] a likelihood of conduct on the part
of [a] third person[]’ that was ‘likely to endanger the safety’ of
another.” J.S., 155 N.J. at 338. In J.S., the Court used the phrase
“special reason to know” in reference to a personal relationship
or prior experience that put a defendant “in a position” to

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“discover the risk of harm.” Consequently, when the sender
“has actual knowledge or special reason to know,” from prior
texting experience or otherwise, that the recipient will view the
text while driving, the sender has breached a duty of care to the
public by distracting the driver.~
When the sender knows that the text will reach the driver while
operating a vehicle, the sender has a relationship to the public
who use the roadways similar to that of a passenger physically
present in the vehicle. As we have stated, a passenger must
avoid distracting the driver. The remote sender of a text who
knows the recipient is then driving must do the same.
When the sender texts a person who is then driving, knowing
that the driver will immediately view the text, the sender has
disregarded the attendant and foreseeable risk of harm to the
public. The risk is substantial, as evidenced by the dire
consequences in this and similar cases where texting drivers
have caused severe injuries or death.
With respect to the sender's opportunity to exercise care, “[a]
corresponding consideration is the practicality of preventing [the
risk].” We must take into account “how establishing this duty
will work in practice.” In imposing an independent duty of the
passengers in Podias, we noted the “relative ease” with which
they could have used their cell phones to summon help for the
injured motorcyclist. It is just as easy for the sender of a text
message to avoid texting to a driver who the sender knows will
immediately view the text and thus be distracted from driving
safely. “When the defendant’s actions are ‘relatively easily
corrected’ and the harm sought to be presented is ‘serious,’ it is
fair to impose a duty.”.
At the same time, “[c]onsiderations of fairness implicate the
scope as well as the existence of a duty.”. Limiting the duty to
persons who have such knowledge will not require that the
sender of a text predict in every instance how a recipient will act.
It will not interfere with use of text messaging to a driver that
one expects will obey the law. The limited duty we impose will
not hold texters liable for the unlawful conduct of others, but it
will hold them liable for their own negligence when they have

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knowingly disregarded a foreseeable risk of serious injury to
others.
Finally, the public interest requires fair measures to deter
dangerous texting while driving. Just as the public has learned
the dangers of drinking and driving through a sustained
campaign and enhanced criminal penalties and civil liability, the
hazards of texting when on the road, or to someone who is on
the road, may become part of the public consciousness when
the liability of those involved matches the seriousness of the
harm.~
To summarize our conclusions, we do not hold that someone
who texts to a person driving is liable for that person’s negligent
actions; the driver bears responsibility for obeying the law and
maintaining safe control of the vehicle. We hold that, when a
texter knows or has special reason to know that the intended
recipient is driving and is likely to read the text message while
driving, the texter has a duty to users of the public roads to
refrain from sending the driver a text at that time.~
In this case, plaintiffs developed evidence pertaining to the
habits of Best and Colonna in texting each other repeatedly.
They also established that the day of the accident was not an
unusual texting day for the two. But they failed to develop
evidence tending to prove that Colonna not only knew that Best
was driving when she texted him at 5:48:14 p.m. but that she
knew he would violate the law and immediately view and
respond to her text.
As our recitation of the facts shows, Colonna sent only one text
while Best was driving. The contents of that text are unknown.
No testimony established that she was aware Best would violate
the law and read her text as he was driving, or that he would
respond immediately. The evidence of multiple texting at other
times when Best was not driving did not prove that Colonna
breached the limited duty we have described.
Because the necessary evidence to prove breach of the remote
texter’s duty is absent on this record, summary judgment was
properly granted dismissing plaintiffs’ claims against Colonna.

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Affirmed.

The Duty of Care and Criminal Acts
One thorny question regarding the duty of care is whether a duty of
care will be present in the circumstance in which a person is
pressured to accede to the demands of a criminal in order to prevent
harm to an innocent person. Few courts have considered this
question, but a majority have concluded that there is no duty.
Case: Boyd v. Racine Currency Exchange
The following case considers whether there is a duty to accede to
criminal demands. While you read, ask yourself whether you find the
court’s use of precedent persuasive.

Boyd v. Racine Currency Exchange, Inc.
Supreme Court of Illinois
November 30, 1973
56 Ill.2d 95. Piney BOYD, Appellee, v. RACINE CURRENCY
EXCHANGE, INC., et al., Appellants. No. 45557.
Justice HOWARD C. RYAN:
The plaintiff’s husband, John Boyd, was present in the Racine
Currency Exchange on April 27, 1970, for the purpose of
transacting business. While he was there, an armed robber
entered and placed a pistol to his head and told Blanche
Murphy, the teller, to give him the money or open the door or
he would kill Boyd. Blanche Murphy was at that time located
behind a bulletproof glass window and partition. She did not
comply with the demand but instead fell to the floor. The
robber then shot Boyd in the head and killed him.
This is a wrongful death action against Racine Currency
Exchange and Blanche Murphy to recover damages for the
death of plaintiff’s decedent~. Plaintiff’s complaint was
dismissed on motion of the defendants by the circuit court of
Cook County for failure to state a cause of action. The appellate
court reversed and remanded the cause to the circuit court.~

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Plaintiff alleges several acts of negligence by the Racine
Currency Exchange and Blanche Murphy. Count I alleges that
the defendants owed Boyd, a business invitee, the duty to
exercise reasonable care for his safety and that they breached
this duty when they refused to accede to the robber’s demands.
Count I also alleges that defendants acted negligently in
adopting a policy, knowledge of which was deliberately withheld
from their customers, according to which their money was to be
protected at all costs, including the safety and the lives of the
customers.
In count II the plaintiff alleges that the Currency Exchange was
negligent in failing to instruct its employees regarding the course
of conduct which would be necessary under the circumstances
of this case to prevent exposing customers to unreasonable risks
of harm. Count II further alleges that the Currency Exchange
was negligent in employing a person who was incompetent to
fulfill the responsibilities of her position. Negligence is also
alleged in the failure to furnish guidelines of how to act in case
of armed robbery, and alternatively that it was negligent in
failing to disclose to its customers its policy of preserving its
monies at all costs.
It is fundamental that there can be no recovery in tort for
negligence unless the defendant has breached a duty owed to the
plaintiff. The plaintiff contends that a business proprietor has a
duty to his invitees to honor criminal demands when failure to
do so would subject the invitees to an unreasonable risk. It is
claimed that this duty arises from the relationship between a
landowner and a business invitee.
It is the general rule in Illinois and other jurisdictions that a
person has no duty to anticipate the criminal acts of third
parties. An exception to this rule exists, however, when criminal
acts should reasonably have been foreseen. (Neering v. Illinois
Central R.R. Co., 383 Ill. 366.) Neering, and many of the other
cases cited by the parties, involved the question of whether facts
existed which should have alerted the defendant to a risk of
harm to his invitees by criminals. These cases are of little help
here since our case presents a question of whether the defendant

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who is faced with an imminent criminal demand incurs liability
by resisting, not whether he is negligent in failing to take
precautions against a possible future crime.
Also of little assistance in Sinn v. Farmers Deposit Savings Bank,
300 Pa. 85, 150 A. 163. In that case recovery for the plaintiff,
who was injured when a bank robber detonated dynamite within
the bank, was upheld. The plaintiff alleged that had the bank
warned him that a bank robbery was in progress, as they had the
opportunity to do, he could have escaped unharmed. The
plaintiff’s intestate in our case, however, was obviously on
notice that a robbery was in progress, and plaintiff does not
predicate her claim on the absence of warning.
The Restatement of Torts does not consider the specific issue
before us. The Restatement does set forth the principle that a
person defending himself or his property may be liable for harm
to third persons if his acts create an unreasonable risk of harm
to such persons. (Restatement (Second) of Torts, secs. 75 and 83.)
However, these sections refer to situations in which the harm is
caused directly by a person resisting, not by the criminal such as
where a shot fired at a criminal hits a third person.
We are aware of only two cases which have discussed issues
similar to the one with which we are faced here – whether a
person injured during the resistance to a crime is entitled to
recover from the person who offered the resistance. In Genovay
v. Fox, 50 N.J.Super. 538, a plaintiff who was shot and wounded
during the robbery of a bowling alley bar claimed that the
proprietor was liable because instead of complying with the
criminal demand he stalled the robber and induced resistance by
those patrons present. The plaintiff was shot when several
patrons attempted to disarm the bandit. The court there
balanced the interest of the proprietor in resisting the robbery
against the interest of the patrons in not being exposed to bodily
harm and held that the complaint stated a cause of action. The
court stated: ‘The value of human life and of the interest of the
individual in freedom from serious bodily injury weigh
sufficiently heavily in the judicial scales to preclude a
determination as a matter of law that they may be disregarded

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simply because the defendant’s activity serves to frustrate the
successful accomplishment of a felonious act and to save his
property from loss.’ The court held that under the
circumstances it was for the jury to determine whether
defendant’s conduct was reasonable.
In Noll v. Marian, 347 Pa. 213, the court held that no cause of
action existed. The plaintiff was present in a bank when an
armed robber entered and announced “It’s a holdup. Nobody
should move.” The bank teller, instead of obeying this order,
dropped down out of sight. The gunman then opened fire and
wounded the plaintiff. The court held that even though the
plaintiff might not have been injured if the teller had stood still,
the teller did not act negligently in attempting to save himself
and his employer’s property.
In Lance v. Senior, 36 Ill.2d 516, this court noted that
foreseeability alone does not result in the imposition of a duty.
‘The likelihood of injury, the magnitude of the burden of
guarding against it and the consequences of placing the burden
upon the defendant, must also be taken into account.’
In the present case an analysis of those factors leads to the
conclusion that no duty to accede to criminal demands should
be imposed. The presence of guards and protective devices do
not prevent armed robberies. The presence of armed guards
would not have prevented the criminal in this case from either
seizing the deceased and using him as a hostage or putting the
gun to his head. Apparently nothing would have prevented the
injury to the decedent except a complete acquiescence in the
robber’s demand, and whether acquiescence would have spared
the decedent is, at best, speculative. We must also note that the
demand of the criminal in this case was to give him the money
or open the door. A compliance with this alternate demand
would have, in turn, exposed the defendant Murphy to danger
of bodily harm.
If a duty is imposed on the Currency Exchange to comply with
such a demand the same would only inure to the benefit of the
criminal without affording the desired degree of assurance that
compliance with the demand will reduce the risk to the invitee.

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In fact, the consequence of such a holding may well be to
encourage the use of hostages for such purposes, thereby
generally increasing the risk to invitees upon business premises.
If a duty to comply exists, the occupier of the premises would
have little choice in determining whether to comply with the
criminal demand and surrender the money or to refuse the
demand and be held liable in a civil action for damages brought
by or on behalf of the hostage. The existence of this dilemma
and knowledge of it by those who are disposed to commit such
crimes will only grant to them additional leverage to enforce
their criminal demands. The only persons who will clearly
benefit from the imposition of such a duty are the criminals. In
this particular case the result may appear to be harsh and unjust,
but, for the protection of future business invitees, we cannot
afford to extend to the criminal another weapon in his arsenal.
For these reasons we hold that the defendants did not owe to
the invitee Boyd a duty to comply with the demand of the
criminal.
Accordingly, the judgment of the appellate court will be
reversed, and the judgment of the circuit court of Cook County
will be affirmed.
Appellate court reversed; circuit court affirmed.
Justice JOSEPH H. GOLDENHERSH, dissenting:
I dissent. The majority opinion fails to take into account the
principles of law clearly enunciated in Restatement (Second) of
Torts~ and on the basis of pure conjecture concludes that
nothing that defendant’s employee could have done would have
saved the deceased from death or injury. The majority’s polemic
on the subject of the hazards which would be created by an
application of established legal principles to this case finds little
support in logic and none whatsoever in the legal authorities.
This case comes to us only on the pleadings and I agree with the
appellate court that “Whether what defendants did or did not do
proximately caused the injury that befell plaintiff’s decedent,
whether Blanche Murphy had the time so she could, under the
circumstances alleged, exercise the kind of judgment expected of

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a person of ordinary prudence, were questions of fact which,
from all the evidence, must be decided by a trier of the facts,
judge or jury.” I would affirm the judgment of the appellate
court.

Questions to Ponder About Boyd
A. Professor James Grimmelmann of New York Law School
described Boyd this way: “Not the most tragic case of all time, but
perhaps the most concisely tragic.” Do you agree that there is
something briskly heartbreaking about these facts? What role does
emotion play in your view of the case? How about in the view of the
majority and the dissent?
B. The majority believes that imposing a duty in this situation might
“encourage the use of hostages.” The court reasons as follows: “If a
duty to comply exists, the occupier of the premises would have little
choice in determining whether to comply with the criminal demand
and surrender the money or to refuse the demand and be held liable
in a civil action for damages brought by or on behalf of the hostage.
The existence of this dilemma and knowledge of it by those who are
disposed to commit such crimes will only grant to them additional
leverage to enforce their criminal demands.” Do you think this is
true? Is it realistic that robbers will learn finer points of tort doctrine
and then apply that knowledge strategically?
C. The dissent does not argue that the Racine Currency Exchange
should be liable. Note the procedural posture of the case. The
question is whether the complaint should be dismissed for failure to
state a cause of action. The dissent argues that the complaint should
survive and that the issue of the bank employee’s responsibility in
such a situation should be put to a jury. If the dissent prevailed and
this case had been heard by a jury, what would be your prediction
about the verdict?

The Use of Boyd to Decide Duty in Orrico v. Beverly Bank
Several years later, the Boyd case was cited by a different bank in
another wrongful death case. In Orrico v. Beverly Bank, 109 Ill.App.3d
102 (1982), a mentally disabled man was allowed to withdraw $2,100

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from his bank account in one-hundred dollar bills, despite the fact
that the man’s mother repeatedly expressed to the bank her concern
for her son’s safety should he be given such a large amount of cash.
The bank at the time was also in receipt of a court order regarding
the man’s incompetency, a circumstance under which the bank would
ordinarily freeze the man’s account. After the man was given the cash
and left the bank, he went to a park where he flashed the stack of
money to people at a softball game. That night, the man was found
dead, shot in the back of the head, all the money gone from his body.
A jury in the case awarded $9,500 to be paid by the bank to the
mother. The bank appealed the verdict, citing Boyd to argue it owed
no duty to the decedent. The Illinois Court of Appeals held for the
plaintiff, saying that the bank did indeed owe a duty to the decedent
because of its relationship to him. Boyd, the court said, reflected “a
strong societal interest in not inducing criminal activity by acceding
to criminal demands, even at the cost of harm to an individual.” But
the court held there was no such interest at stake in the later case.
Thus, the court held that the bank owed the decedent “a duty not to
utilize his funds in a manner which would increase the risk of danger
to him.”

Affirmative Duties
It is well accepted that the general duty of care requires would-be
defendants to refrain from actions that unreasonably subject
foreseeable plaintiffs to a risk of harm. There is, however, no general
duty to affirmatively engage in actions to prevent harm to plaintiffs.
Stated more plainly, you only have to try to not hurt people. You do
not have to try to help them.
The distinction is sometimes said to be between “nonfeasance” on
the one hand and “malfeasance” (a/k/a “misfeasance”) on the other.
In this terminology, nonfeasance is doing nothing, while malfeasance
or misfeasance is doing something harmful. Ordinarily, no legal duty
is implicated in cases of nonfeasance – where the would-be defendant
just stands by and watches harmful events unfold. This is true even,
for instance, if there is an easy opportunity to step in and prevent
massive loss of life or suffering. On the other the hand, any activity a

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person undertakes must be undertaken in a reasonably careful
manner. Thus, malfeasance implicates the duty of care.
There are some important exceptions, which are discussed below.
These include circumstances where there is a pre-existing special
relationship between the plaintiff and defendant, and where the
defendant’s own conduct created put the plaintiff in peril.
The General Rule: No Affirmative Duty to Help
The overarching rule is that the law does not require persons to be
good Samaritans and step up to help people in distress. This rule is
often hard for students to accept. The next two cases demonstrate
that even cruel indifference to another’s suffering does not make for
a cause of action.
Case: Yania v. Bigan
This case is a vivid example of the no-affirmative-duty to act rule.

Yania v. Bigan
Supreme Court of Pennsylvania
November 9, 1959
397 Pa. 316. Widow of Joseph F. Yania, Appellant, v. John E.
Bigan, Appellee. Before JONES, C.J., BELL, JONES, COHEN,
BOK and McBRIDE, JJ.
Justice BENJAMIN R. JONES:
A bizarre and most unusual circumstance provides the
background of this appeal.
On September 25, 1957 John E. Bigan was engaged in a coal
strip-mining operation in Shade Township, Somerset County.
On the property being stripped were large cuts or trenches
created by Bigan when he removed the earthen overburden for
the purpose of removing the coal underneath. One cut
contained water 8 to 10 feet in depth with side walls or
embankments 16 to 18 feet in height; at this cut Bigan had
installed a pump to remove the water.
At approximately 4 p.m. on that date, Joseph F. Yania, the
operator of another coal strip-mining operation, and one Boyd

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M. Ross went upon Bigan’s property for the purpose of
discussing a business matter with Bigan, and, while there, were
asked by Bigan to aid him in starting the pump. Ross and Bigan
entered the cut and stood at the point where the pump was
located. Yania stood at the top of one of the cut’s side walls and
then jumped from the side wall – a height of 16 to 18 feet – into
the water and was drowned.
Yania’s widow, in her own right and on behalf of her three
children, instituted wrongful death and survival actions against
Bigan contending Bigan was responsible for Yania’s death.~
Since Bigan has chosen to file preliminary objections, in the
nature of demurrers, every material and relevant fact well
pleaded in the complaint and every inference fairly deducible
therefrom are to be taken as true.
The complaint avers negligence in the following manner: (1)
“The death by drowning of … [Yania] was caused entirely by
the acts of [Bigan] … in urging, enticing taunting and inveigling
[Yania] to jump into the water, which [Bigan] knew or ought to
have known was of a depth of 8 to 10 feet and dangerous to the
life of anyone who would jump therein” (Emphasis supplied);
(2) … [Bigan] violated his obligations to a business invitee in not
having his premises reasonably safe, and not warning his
business invitee of a dangerous condition and to the contrary
urged, induced and inveigled [Yania] into a dangerous position
and a dangerous act, whereby [Yania] came to his death”; (3)
“After [Yania] was in the water, a highly dangerous position,
having been induced and inveigled therein by [Bigan], [Bigan]
failed and neglected to take reasonable steps and action to
protect or assist [Yania], or extradite [Yania] from the dangerous
position in which [Bigan] had placed him”. Summarized, Bigan
stands charged with three-fold negligence: (1) by urging,
enticing, taunting and inveigling Yania to jump into the water;
(2) by failing to warn Yania of a dangerous condition on the
land, i.e., the cut wherein lay 8 to 10 feet of water; (3) by failing
to go to Yania’s rescue after he had jumped into the water.

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Our inquiry must be to ascertain whether the well-pleaded facts
in the complaint, assumedly true, would, if shown, suffice to
prove negligent conduct on the part of Bigan.~
[I]t is urged that Bigan failed to take the necessary steps to
rescue Yania from the water. The mere fact that Bigan saw
Yania in a position of peril in the water imposed upon him no
legal, although a moral, obligation or duty to go to his rescue
unless Bigan was legally responsible, in whole or in part, for
placing Yania in the perilous position. The language of this
Court in Brown v. French is apt: “If it appeared that the deceased,
by his own carelessness, contributed in any degree to the
accident which caused the loss of his life, the defendants ought
not to have been held to answer for the consequences resulting
from that accident. … He voluntarily placed himself in the way
of danger, and his death was the result of his own act. … That
his undertaking was an exceedingly reckless and dangerous one,
the event proves, but there was no one to blame for it but
himself. He had the right to try the experiment, obviously
dangerous as it was, but then also upon him rested the
consequences of that experiment, and upon no one else; he may
have been, and probably was, ignorant of the risk which he was
taking upon himself, or knowing it, and trusting to his own skill,
he may have regarded it as easily superable. But in either case,
the result of his ignorance, or of his mistake, must rest with
himself – and cannot be charged to the defendants”. The
complaint does not aver any facts which impose upon Bigan
legal responsibility for placing Yania in the dangerous position
in the water and, absent such legal responsibility, the law
imposes on Bigan no duty of rescue.
[W]e can reach but one conclusion: that Yania, a reasonable and
prudent adult in full possession of all his mental faculties,
undertook to perform an act which he knew or should have
known was attended with more or less peril and it was the
performance of that act and not any conduct upon Bigan’s part
which caused his unfortunate death.
Order affirmed.

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Questions to Ponder about Yania
A. Jury denied: This case was decided on a demurrer, a common-law
pleading device analogous to Rule 12(b)(6) in the Federal Rules of
Civil Procedure and the motion used in Boyd, allowing for the
dismissal of a complaint for failure to state a claim for which relief
can be granted. In sustaining a demurrer or granting a 12(b)(6)
motion, the court is saying that even assuming the facts stated in the
complaint are true, the law does not allow an award of damages.
Thus, this case is a good one to illustrate how the duty-of-care
element allows judges to exercise a gatekeeping function on what
cases reach a jury. Do you think the duty of care plays an important
limiting function in this sense? Or would you be inclined to let more
cases go to trial where a jury can dispense justice according to
intuitions of fairness and a sense of indignancy?
B. The wrong side of the law: Just because there is no legal duty to
act doesn’t mean there is no moral duty to act. Most people would
agree that, as a moral matter, John E. Bigan should have helped the
drowning man. Does that mean, as a moral matter, the law should
hold him responsible when he doesn’t? If not, why not?
Case: Theobald v. Dolcimascola
This next case is a more contemporary example of the general rule of
that there is no affirmative duty to act.

Theobald v. Dolcimascola
Superior Court of New Jersey, Appellate Division
April 2, 1997
299 N.J. Super 299. Colleen Theobald, as administrator ad
prosequendum for the heirs at law of Sean Theobald, deceased
as administrator of the Estate of Sean Theobald, and Colleen
Theobald, Harold Theobald, individually, plaintiffs-appellants, v.
Michael Dolcimascola, Amy Flanagan and Robert Bruck,
defendants-respondents. Charles Henn, Jr., Charles Henn, Joan
Henn, Katherine Gresser and Jackson Sporting Goods,
defendants-third-party plaintiffs, v. Chris Smidt, third-party

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defendant. A-2863-95T3. Judges DREIER, D’ANNUNZIO
and NEWMAN.
Presiding Judge WILLIAM A. DREIER:
Plaintiffs, Colleen Theobald as Administrator Ad
Prosequendum for the heirs of Sean Theobald and as
administrator of his estate, and Colleen Theobald and Harold
Theobald (the parents of the late Sean Theobald), individually,
appeal from summary judgments dismissing their complaint
against the three remaining defendants, Michael Dolcimascola,
Robert Bruck, and Amy Flanagan. Settlements or unappealed
summary judgments have removed the remaining defendants
from this case.
On January 20, 1991, plaintiffs’ decedent, Sean Theobald, was in
the second floor bedroom of his house with five of his friends.
His father was downstairs watching television. The friends had
gathered at 6:00 p.m. for a birthday party for one of the friends,
Robert Bruck. The other teenagers present were Charles Henn,
Michael Dolcimascola, Amy Flanagan and Katherine Gresser.
At some time during the evening, the decedent produced an
unloaded revolver and ammunition, both of which were
examined by all of the teenagers. The discussion turned toward
another friend of theirs who had died playing Russian Roulette,
and the decedent indicated that he also would try the “game.”
According to the predominant version of the varying testimony,
Sean put a bullet into the gun, pointed it at his head and pulled
the trigger several times. He then put the gun down, checked the
cylinder, and tried again three or four more times. The gun then
went off, killing him. Other versions had the gun going off on
the first occasion he tried, or the gun firing by accident without
his putting the barrel to his head.~ There was, however, ample
testimony that there were several attempts made while the five
other teenagers merely sat around and watched. The trial judge
determined that if none of the teenagers actively participated,
they had no duty to stop the decedent, and therefore summary
judgment was entered.~
The first question before us is whether any of the defendants, if
they were mere observers to this tragic event, can be held civilly

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liable to plaintiffs. We are at a loss for a viable theory. Had this
been a joint endeavor in which all were participating in the
“game” of Russian Roulette, there is some authority that each of
the participants in the enterprise might be held responsible,
although the only cases we have been able to retrieve involve
the criminal responsibility of participants. See e.g., Commonwealth
v. Atencio, 345 Mass. 627 (1963) (where the participants were
found guilty of manslaughter). There is no reason to suppose
that if the participants could be found criminally responsible,
they could not also be held civilly liable. A line, however, has
been drawn by the courts between being an active participant
and merely being one who had instructed a decedent how to
“play” Russian Roulette. In the latter case, a defendant was
determined to be free of any potential criminal liability. Lewis v.
State, 474 So. 2d 766, 771 (Ala.Crim.App. 1985). Another court,
in dictum, stated that inducing an individual to engage in Russian
Roulette creates a sufficiently foreseeable harm to engender
potential civil liability. Great Central Ins. Co. v. Tobias 37 Ohio
St.3d 127 (Ohio.Ct.App. 1987).
The most comprehensive New Jersey statement of the existence
of a duty to another was expressed in Wytupeck v. City of Camden,
25 N.J. 450 (1957). Although the case involved the question of
liability for the use of a dangerous instrumentality on
defendant’s land, the case explored when a duty to act arises in
inter-personal relationships:
“Duty” is not an abstract conception; and the
standard of conduct is not an absolute. Duty
arises out of a relation between the particular
parties that in right[,] reason and essential justice
enjoins the protection of the one by the other
against what the law by common consent deems
an unreasonable risk of harm, such as is
reasonably foreseeable. In the field of
negligence, duty signifies conformance “to the
legal standard of reasonable conduct in the light
of the apparent risk;” the essential question is
whether “the plaintiff’s interests are entitled to
legal protection against the defendant’s
conduct.” Prosser on Torts, (2d ed., section 36).

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Duty is largely grounded in the natural
responsibilities of social living and human
relations, such as have the recognition of
reasonable men; and fulfillment is had by a
correlative standard of conduct.
If defendants had either been participants or had induced
decedent to play Russian Roulette, or even if there had been
some other factor by which we could find a common enterprise,
then defendants may have had a duty to act to protect Sean
from the consequences of his foolhardy actions. Such a duty
would nevertheless invoke the usual principles of comparative
negligence.~ The problem with such potential liability, however,
is the significant factor of a decedent’s own negligence which,
when measured against any participant’s breach of a duty of
care, would probably preclude recovery in most cases.
What we are left with in the case before us, positing that there
was no proof of encouragement or participation, is a claim
which is grounded in a common law duty to rescue. As has been
explained in texts and reiterated in case law, there is no such
duty, except if the law imposes it based upon some special
relationship between the parties. See W. Page Keeton, et al.,
Prosser and Keaton on Torts, § 56, at 375 (5th ed. 1984) (“[T]he law
has persistently refused to impose on a stranger the moral
obligation of common humanity to go to the aid of another
human being who is in danger, even if the other is in danger of
losing his life.”); J.D. Lee and Barry A. Lindahl, Modern Tort Law,
§ 3.07, at 36 (1994 and Supp.1996) (“With regard to rescues, it
has been stated that the general rule is that there is no liability
for one who stands idly by and fails to rescue a stranger. … ”);
Restatement (Second) of Torts, § 314 (1965) (“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.”). The Restatement’s Illustration 1 is
instructive. It posits the actor, A, viewing a blind man, B,
stepping into the street in the path of an approaching
automobile, where a word or touch by A would prevent the
anticipated harm. The Restatement concludes that “A is under

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no duty to prevent B from stepping into the street, and is not
liable to B.”
Recent New Jersey decisions have focused upon the exceptions
to this general rule and involve situations where a duty to act
exists as a result of the relationship between the parties, namely,
police-arrestee (Del Tufo v. Township of Old Bridge, 147 N.J. 90
(1996); Hake v. Manchester Township, 98 N.J. 302 (1985)) and
physician-patient (Olah v. Slobodian, 119 N.J. 119 (1990)). These
cases also address the liability of a ship’s captain for failing to
attempt to rescue a drowning seaman.
All of these cases are distinguishable from the situation before
us, assuming the five observers were mere bystanders upon
whom the law places no duty to have protected the decedent.
While we may deplore their inaction, we, as did the trial judge,
find no legal authority to impose liability. We note the ease with
which defendants could have reached out and taken away the
revolver when Sean put it down between his two series of
attempted firings, or the simple act of one of the five walking to
the door and summoning Sean’s father, or even remonstrating
with Sean concerning his actions. But such acts would have
been no more or less than the simple preventatives given in the
Restatement Illustration of a word or touch necessary to save a
blind pedestrian. Where there is no duty, there is no liability.
We recognize that the Supreme Court in Wytupeck v. City of
Camden, supra, has defined duty as a flexible concept:
“Duty” is not a rigid formalism according to the
standards of a simpler society, immune to the
equally compelling needs of the present order;
duty must of necessity adjust to the changing
social relations and exigencies and man’s
relation to his fellows; and accordingly the
standard of conduct is care commensurate with
the reasonably foreseeable danger, such as
would be reasonable in the light of the
recognizable risk, for negligence is essentially “a
matter of risk * * * that is to say of recognizable
danger of injury.”

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But, if a legally actionable duty is to be found in a situation such
as the one before us, it must be declared by the Supreme
Court.~ In sum, we determine that there was no common law
duty owed by defendants to the decedent if defendants were
mere observers of his shooting. If, however, there is admissible
evidence against one or more of the defendants that they
participated in deceiving the decedent into assuming the weapon
was not loaded when in fact one of them had placed a bullet in
the cylinder, then liability may be imposed against such
defendant or defendants for such conduct.~

Questions to Ponder About Theobald
A. This case reaches the same result as Yania v. Bigan, but seems to do
so apologetically. Are you inclined to think that a concept of duty
that “adjust[s] to the changing social relations and exigencies and
man’s relation to his fellows” requires recognizing an affirmative duty
in a case such as this?
B. Does the doctrine barring a general affirmative duty to act reflect
antiquated attitudes? If common-law tort doctrine were being written
today on a blank slate, do you think the courts would recognize a
general affirmative duty?
C. If courts were to recognize a general affirmative duty to act, what
would be the limiting principle? Consider that most people have
spent money on luxury items that they could have spent that money
to feed starving children overseas. Should a failure to send to charity
all money a person doesn’t strictly need expose one to liability? If
trauma surgeons refrained from taking vacations and days off,
arguably they could save more lives. Should their leisure hours expose
them to tort liability? If your answer to those to questions is no, how
do you draw the line between those sorts of cases on the one hand
and Yania and Theobald on the other?
The Exception of Defendant-Created Peril
A generally recognized exception to the no-affirmative-duty rule is
the situation in which the defendant’s own negligence conduct
created the plaintiff’s peril. If the defendant has left a banana peel in
the road, and the plaintiff slips on it and falls, the defendant has a

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duty of care to help the plaintiff out of the roadway before a truck
comes along and strikes the plaintiff. If the plaintiff is hurt badly
enough, the defendant also has an affirmative duty to call emergency
services, etc.
Note that this exception applies when it is the defendant’s negligence
that has produced the perilous situation. If the defendant’s innocent
conduct somehow creates the peril, traditional doctrine holds that no
affirmative duty is incurred.
Case: South v. Amtrak
This case shows how one jurisdiction decided to broaden the
defendant-created peril rule to include not just those situations
occasioned by the defendant’s negligence, but also those situations
that were created by the defendant’s innocent conduct.

South v. Amtrak
Supreme Court of North Dakota
March 20, 1980
290 N.W.2d 819. Civil No. 9664. Billy Lee South and Delores
South, husband and wife, Plaintiffs and Appellees v. National
Railroad Passenger Corporation (AMTRAK), Burlington
Northern Railroad, Inc., Leslie Roy Strom and S. M. Burdick as
Public Special Administrator of the Estate of Howard W.
Decker, Deceased, Defendants and Appellants. Paulson,
Pederson, VandeWalle, Sand, JJ., Erickstad, C.J.
Justice WILLIAM L. PAULSON:
This is an appeal by the defendants, National Railroad Passenger
Corporation (Amtrak) [and others] (herein collectively referred
to as the “Railroad”), from the judgment of the Grand Forks
District Court, entered March 21, 1978, and amended May 12,
1978, in which the court, upon jury verdicts, awarded the
plaintiff Billy Lee South (herein referred to as “South”)
$948,552, including costs, and awarded the plaintiff Delores
South $126,000, including costs. The Railroad also appeals from
the order of the district court, entered May 16, 1979, in which

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the court denied its motion for judgment notwithstanding the
verdict or in the alternative for a new trial. We affirm.
An action was commenced by South for damages sustained as a
result of a collision between a pickup truck, owned and driven
by South, and the Railroad’s train at the Barrett Avenue crossing
in Larimore, North Dakota, on January 17, 1976, at
approximately 6:20 a.m. South sustained serious injuries in the
collision. He sued the Railroad for damages on a theory of
negligence, and his wife, Delores, also sued the Railroad for
damages allegedly incurred by the loss of her husband’s
consortium.~
Prior to the collision South was employed as a missile site
superintendent. South lived in Larimore, and on the morning of
the collision he, for the first time, was driving to work at a new
missile site location to which he had been assigned. To drive to
the old work site South crossed the railroad tracks in Larimore
at the Towner Avenue crossing, but in order to drive to the new
work site South took a route which crossed the tracks at the
Barrett Avenue crossing.
As South approached the Barrett Avenue crossing traveling
south at approximately 20 miles per hour, a westbound Amtrak
passenger train was also approaching the Barrett Avenue
crossing traveling at approximately 68 miles per hour. Both the
train and South’s pickup reached the crossing at approximately
the same instant and the front of the train engine collided with
the left front portion of South’s vehicle.~
The Railroad asserts that it was not negligent in the operation of
its train and that the maintenance of the crossbuck sign was not
a material issue because South was aware of the location of the
railroad tracks running through Larimore. Several witnesses
testified, on behalf of the Railroad, that the train whistle did
blow a warning on the morning of the collision. The Railroad
also attempted to prove that South was negligent in failing to
ascertain the presence of the train and in failing to safely stop
his vehicle prior to reaching the railroad tracks.

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At the conclusion of the trial the jury returned a verdict in favor
of South and his wife, Delores, against the Railroad. The jury,
upon finding that the Railroad was 100 percent negligent and
that South was not negligent, awarded general and special
damages of $935,000 to South and $125,000 to Delores South.~
Prior to opening argument the Railroad made a motion in limine
to exclude all evidence referring to the train engineer’s failure to
cover South with his parka or to otherwise assist South at the
scene of the accident, on the ground that such evidence was
prejudicial. The engineer who was operating the train at the time
of the accident died prior to the commencement of the trial in
this case. Prior to his death, the Souths’ counsel had taken the
engineer’s deposition, and it was part of this deposition
testimony that the Railroad sought to exclude in its motion in
limine. The motion was denied, and during opening argument the
Souths’ counsel made the following statement:
The evidence will show that as he was lying
there, and I’m taking the deposition of Mr.
Decker, the engineer, I says to Mr. Decker, ‘Did
you have anything to cover him up with?’ ‘No, I
told the police,’ he says. ‘Was it cold out? What
did you do?’ ‘I went to the cab.’ I said, ‘Did you
have anything to cover him up with?’ He said,
‘My new jacket.’ I says, ‘Why didn’t you go and
cover him up?’ He says, ‘That was a brand-new
jacket. It cost $55. I wasn’t going to get it
bloody. The hood cost me $7 alone and I was
going to be in Devils Lake the next day and I
didn’t want to get cold. I wasn’t going to get a
jacket bloody for anybody.’ I said, ‘If you’d have
known he was alive, would you have covered
him up?’ He said, ‘No, I wouldn’t ruin that
jacket.’
Subsequent to opening arguments, the trial court ruled in
chambers that he would not allow certain parts of the engineer’s
deposition testimony regarding the parka incident to be read to
the jury because its prejudicial effect outweighed its probative
value. The trial court allowed the following portion of the
engineer’s deposition on this matter to be read to the jury:

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Q. [Plaintiff’s counsel]: And did you know
where Billy South was laying during this time?
A. [Decker]: Yes. I saw a hump on the right-ofway there. But I didn’t go over.
Q. Did you have anything in the cab to cover
him up with, blanket or anything like that?
A. No, no.
****
A. … I tried to do my best to get the Highway
Patrolman and police to get some covering for
him.
Q. Sure. They are the ones who are supposed to
do things like that. What kind of – what day of
the week was this?
A. I think it was on a Saturday morning.
****
Q. Okay. And if you had –
A. In the first place, when he was layin’ there I
honest to God thought he was dead. Wouldn’t
do any good to cover him up.
****
A. No, I just went out there with my coveralls.
Q. I see.
A. All the time my coat was hanging in the cab.
Q. And before the police came how close did
you walk over to Billy South to see whether or
not –
****
A. I couldn’t do anything anyway. They tell you
not to move an injured person, the ambulance
crew.
Q. You have heard about shock, haven’t you?
A. Yes. I never go over.

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Q. Did you ever take any courses in first aid?
A. No.
Q. Never?
A. (Indicating no.)
During closing argument, the Souths’ counsel commented on
the foregoing testimony.
In its instructions to the jury the trial court stated that if the jury
found by a fair preponderance of the evidence that the Railroad
failed to provide any necessary care for South after the accident
he could recover for damages proximately resulting from such
failure.
The Railroad asserts that counsel’s opening statement was highly
prejudicial and constitutes grounds for a new trial. The Railroad
also asserts that it was improper for the Souths’ counsel to
comment on the parka incident during closing argument after
the court had ruled to exclude such matters. The Railroad’s
latter assertion is based on an inaccurate premise of the trial
court’s ruling. The foregoing quoted portions of the deposition
which were read to the jury demonstrate that the trial court did
not exclude all testimony regarding the parka incident. Only
certain statements made by the engineer which the court
concluded were highly prejudicial and of little or no probative
value were deleted from the deposition testimony. Provided the
trial court did not err in admitting this evidence of the engineer’s
failure to assist South, then plaintiff counsel’s comments during
closing argument were not improper.
In order to determine whether it was error for the trial court to
admit evidence of the engineer’s failure to render assistance after
the accident this Court must resolve, as a matter of first
impression, whether there is an affirmative duty to render
assistance to an injured person, and, if so, under what
circumstances. Unless the engineer in this case had such an
affirmative duty to assist South, all testimony regarding his
failure to cover South with his parka or to otherwise assist was
improperly admitted evidence – irrelevant and immaterial to any
issue in the case.

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During trial the Souths contended that the engineer had an
affirmative duty to assist South by virtue of § 39-08-06,
N.D.C.C., which imposes upon “the driver of any vehicle
involved in an accident” a duty to render reasonable assistance
to any person injured in such accident. We disagree that the
engineer incurred a duty to assist under § 39-08-06, N.D.C.C.
Trains are excluded from the definition of “vehicle” under Title
39, N.D.C.C, as follows:
39-01-01.Definitions. In this title, unless the
context or subject matter otherwise requires: ...
72. ‘Vehicle’ shall include every device in, upon,
or by which any person or property may be
transported or drawn upon a public highway,
except devices moved by human power or used
exclusively upon stationary rails or tracks.
We conclude that the requirements of § 39-08-06, N.D.C.C., do
not pertain to trains, and no duty was imposed upon the
engineer of the train in the instant case by virtue of that section.
On the subject of whether there is a common law duty to assist
one in peril Prosser comments as follows in his treatise, Prosser,
Law of Torts, Section 56 (4th Ed. 1971):
Because of this reluctance to countenance
‘nonfeasance’ as a basis of liability, 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, even though the
outcome is to cost him his life. ...
Thus far the difficulties of setting any standards
of unselfish service to fellow men, and of
making any workable rule to cover possible
situations where fifty people might fail to rescue
one, has limited any tendency to depart from
the rule to cases where some special relation
between the parties has afforded a justification
for the creation of a duty, without any question
of setting up a rule of universal application.”

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It also is recognized that if the defendant’s own
negligence has been responsible for the
plaintiff’s situation, a relation has arisen which
imposes a duty to make a reasonable effort to
give assistance, and avoid any further harm.
Where the original danger is created by innocent
conduct, involving no fault on the part of the
defendant, it was formerly the rule that no such
duty arose; but this appears to have given way,
in recent decisions, to a recognition of the duty
to take action, both where the prior innocent
conduct has created an unreasonable risk of
harm to the plaintiff, and where it has already
injured him.
The Restatement (Second) of Torts S 322 (1965) takes the
following position:
§ 322. Duty to Aid Another Harmed by Actor’s
Conduct
If the actor knows or has reason to know that
by his conduct, whether tortious or innocent, he
has caused such bodily harm to another as to
make him helpless and in danger of further
harm, the actor is under a duty to exercise
reasonable care to prevent such further harm.
Thus, the Restatement view is that one who harms another has
an affirmative duty to exercise reasonable care to prevent further
harm.
Although there is a paucity of case decisions involving this
matter a few jurisdictions have discussed the issue. The Supreme
Court of North Carolina held in Parrish v. Atlantic Coast Line R.R.
Co., 221 N.C. 292 (1942), that one who negligently harms
another must take all steps necessary to mitigate the harm. See,
also, Whitesides v. Southern Railway Co., 128 N.C. 229 (1901). The
Appellate Court of Indiana in Tubbs v. Argus, 140 Ind. App. 695
(1967), after quoting approvingly from § 322 of the Restatement
(Second) of Torts, held that “... an affirmative duty arises to
render reasonable aid and assistance to one who is helpless and

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in a situation of peril, when the injury resulted from the use of
an instrumentality under the control of the defendant.”
We believe that the position expressed by § 322, Restatement
(Second) of Torts (1965), reflects the type of basic decency and
human thoughtfulness which is generally characteristic of our
people, and we therefore, adopt the standard imposed by that
section. Accordingly, we hold that a person who knows or has
reason to know that his conduct, whether tortious or innocent,
has caused harm to another has an affirmative duty to render
assistance to prevent further harm. One who breaches such duty
is subject to liability for damages incurred as a result of the
additional harm proximately caused by such breach. We further
hold that, in the instant case, the trial court did not err in the
admission of the engineer’s testimony regarding the assistance,
or lack thereof, to South at the scene of the accident, nor did the
court abuse its discretion in refusing to admit those portions of
the testimony which the court determined were highly
prejudicial and irrelevant.
During opening argument to the jury, the Souths’ counsel
referred to statements made by the engineer as to why he did
not cover South with his jacket. As noted previously, some of
those statements were never admitted into evidence because of
the court’s ruling that they were highly prejudicial. As part of its
instruction to the jury the trial court gave a standard instruction
that the arguments or other remarks of the attorneys were not to
be considered as evidence in the case and that any comments by
counsel concerning the evidence which were not warranted by
the evidence actually admitted were to be wholly disregarded.
We recognize the reality of a situation such as this wherein
inflammatory comments made by counsel during opening
argument, once impressed upon the minds of the jurors, can
perhaps never be totally erased or their effect completely
negated by an instruction that such comments are not evidence
and should be wholly disregarded. Nevertheless, in view of the
instruction as given and in view of the proper limited admission
into evidence of the engineer’s testimony regarding his failure to
assist South after the accident we hold that the disputed

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comments of the Souths’ counsel in opening argument did not
constitute prejudicial error entitling the Railroad to a new trial.

Questions to Ponder About South v. Amtrak
A. Recall from Weirum v. RKO Justice Mosk’s explanation of the legal
doctrine of duty as being informed by “our continually refined
concepts of morals and justice.” The North Dakota Supreme Court
appears to be working in this vein when it announces that it is
following § 322 of the Restatement (Second) of Torts, saying the
affirmative duty to render aid “reflects the type of basic decency and
human thoughtfulness which is generally characteristic of our
people.” Does this mean that North Dakota sees itself as a nicer state
than jurisdictions that have kept the old common-law rule that there
is no affirmative duty to render aid?
B. To get at the same sort of question from a different angle, does
the American Law Institute’s adoption of § 322 in 1965 indicate that
modern American society is nicer, more thoughtful, and more caring
than the society that adopted the old rule – or at least sees itself as
such?

Weather and “Atmospherics”
Lawyers use the word “atmospherics” to refer to facts that, while not
directly legally relevant, set a case’s overall mood. Legal irrelevance
notwithstanding, atmospherics can be important in valuing a case and
assessing a plaintiff’s likelihood of success. South v. Amtrak happens
to have literal atmospherics. Northeastern North Dakota, where
Larimore is, has the coldest winters in the lower 49 states. And the
middle of January is the coldest time of the year. The case doesn’t say
how cold it was on the morning of January 17, 1976, but according to
archival weather data, it was approximately –9ºF with a wind-chill
temperature of –24ºF. That’s not just uncomfortably cold – for
someone not properly dressed, that’s lethally cold. Another aspect of
this case’s atmospherics is the Cold War. The facts say that Billy
South was on his way to a missile site. At the time, Grand Forks Air
Force Base was home to home to the 321st Strategic Missile Wing,
which controlled scores of nuclear-tipped Minuteman II
intercontinental ballistic missiles loaded in underground silos spread

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out all over eastern North Dakota. The air base is about 20 minutes
from where the accident occurred. So not only is it terrifically cold,
we have a plaintiff who is serving his country. It would seem that
neither America’s Cold War struggles nor North Dakota’s frigid
winters were, strictly speaking, reasons to adopt a particular
negligence doctrine suggested by the Restatement. But no lawyer for
the plaintiff in such a case would fail to put them before the court.

Evidence Law and Procedural Posture
The South v. Amtrak case helps to show why procedural context is so
important to understanding an opinion. The court needed to reach
the substantive question of whether there is an affirmative duty to
render aid in order to decide whether it was proper to admit
testimony of the parka incident. Once that question of substantive
tort-law question was answered, the admissibility of the testimony
became a matter of the rules of evidence. Of course, what was really
at stake in this case was the ability of the plaintiff’s lawyer to put
before the jury the emotionally charged vignette of the Amtrak
engineer’s refusal to use his jacket to keep the plaintiff warm.
Technically, the importance of this testimony was slight. Lawyers on
both sides, however, clearly understood the enormous potential of
the testimony to make an impression on the jury.

Note About the Interpretation of Statutes
South v. Amtrak illustrates how courts interpret statutes and how
statutes are potentially useful in negligence cases. North Dakota
Century Code § 39-08-06, imposes a duty on “the driver of any
vehicle involved in an accident” to render reasonable assistance. The
plaintiff hoped to use this statute to impose such a duty on the
Amtrak engineer. The ordinary meaning of the word “vehicle” would
certainly include a train, and imposing a duty of assistance on train
engineers seems to be well within the spirit of the statute. Yet the
court declined to apply the statute, hewing to a somewhat
idiosyncratic and technical definition found elsewhere in Title 39.
The mystery of why trains are excluded from the definition is
resolved when you find out that Title 39 of the North Dakota
Century Code is the state’s comprehensive scheme for regulating the

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driving of cars and trucks on public roads. Without the definition’s
exclusion of trains from “vehicle,” trains in North Dakota would be
subject to all the provisions of Title 39, including requirements to use
turn signals, display license plates, and even stop at railroad crossings
when red lights were flashing. In this case, the plaintiff’s lawyers were
hoping the court might stretch the meaning of “vehicle” in the
context of § 39-08-06 to include trains. But to do so would have
required ignoring the statute’s text. The court was, however, well
within its mandate to uphold the spirit of the statute by announcing a
new common-law doctrine.
“Good Samaritan” Laws
Many people, when they first hear about the common law’s lack of a
duty to rescue, ask, “What about Good Samaritan laws?”
All states have so-called “Good Samaritan” laws on the books – but
they don’t work the way most people think. Instead of requiring
people to come to one another’s rescue, these laws mostly function
to provide a liability shield for the “clumsy rescuer,” who
munificently decides to come to a person’s aid, but then ends up
doing more harm than good. The idea of these statutes is to waylay
the fears of someone who, at the scene of an accident, thinks, “Gosh,
I know CPR, but if I try to help out, I might end up getting sued.”
Referring to the biblical parable that gives Good Samaritan laws their
name, Dean William L. Prosser wrote, “[T]he Good Samaritan who
tries to help may find himself mulcted in damages, while the priest
and the Levite who pass by on the other side go on their cheerful way
rejoicing.”
An example is Swenson v. Waseca Mutual Insurance Co., 653 N.W.2d 794
(Minn. Ct. App. 2002). In that case, a group of friends were
snowmobiling when one of them, 13-year-old Kelly Swenson,
suffered what appeared to be a dislocated knee. The friends tried to
flag down a passing motorist for help. A woman named Lillian Tiegs
was nice enough to stop. After trying unsuccessfully to call 911 on
her cell phone, Tiegs offered to take Swenson to the hospital. When
Tiegs tried to make a U-turn on the highway to go the direction
Swenson needed, a speeding tractor-trailer rig struck Tiegs’s vehicle

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and killed Swenson. Swenson’s family sued Tiegs, alleging she was
negligent in making the turn. Tiegs’s insurance company was able to
use the state’s Good Samaritan law as a liability shield.
Good Samaritan laws vary state by state in coverage. Typically, the
laws provide immunity from ordinary negligence, but not from gross
negligence or recklessness. Who is protected by the laws varies as
well. Some laws extend immunity to any well-meaning stranger. Some
only apply to persons with training or persons who are licensed
professionals, such as nurses, EMTs, and physicians.
On balance, scholars think Good Samaritan laws do little to actually
encourage people to render help. Professor Dov Waisman, however,
argues that Good Samaritan laws are justified in at least some
situations on the basis of fairness. See Waisman, Negligence,
Responsibility, and the Clumsy Samaritan: Is There a Fairness Rationale for the
Good Samaritan Immunity?, 29 GA. ST. U. L. REV. 609 (2013).
Although in the ordinary case, Good Samaritan laws do not require
people to render aid, there are four states that have laws that impose
some kind of a duty to stop and render aid. Maybe these statutes
would be better called “Compelled Samaritan laws.” Minnesota,
Rhode Island, and Vermont make it an offense to fail to render
reasonable assistance at the scene of an emergency to someone who
is exposed to or has suffered grave physical harm if it is possible to
safely do so. In Minnesota and Rhode Island, such failure to render
aid is a low-level misdemeanor; in Vermont it carries a maximum
$100 fine. See Minn. Stat. § 604A.01, R.I. Gen. Laws § 11-56-1, & 12
Vt. Stat. § 519. Wisconsin has a narrower duty that attaches when
someone is the victim of a crime. See Wis. Stat. § 940.34.
The Exception for Special Relationships
Despite the general no-affirmative-duty rule, there is an affirmative
duty to render aid or take other affirmative actions in situations
involving certain pre-existing relationships. Examples of duties owed
on account of special relationships are:


common carriers, to passengers



innkeepers, to guests

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

landlords, to tenants



stores, to customers



possessors of land open to the public, to members of the
public lawfully present



schools, to students



employers, to employees



jailers, to prisoner



day-care providers, to the children or adults being cared for

So, for instance, if a hotel fire breaks out for reasons having nothing
to do with negligence on the part of the hotel, the hoteliers are
nonetheless under a duty to help patrons to safety. Similarly, if a
customer in a store has a heart attack and falls to the floor, the
storekeepers have an obligation to dial 911, clear a space, etc.
The Exception for Assumption of Duty
Another exception to the no-affirmative-duty rule is when a
defendant assumes the duty. A motorist is driving along the highway
when comes upon the scene of a car crash. In this instance, he is
under no duty to stop. This is true even if no other help has yet
arrived. But if the motorist does stop to render aid, then he has
assumed a duty. This means that the driver is liable for any additional
harm caused by his failure to take whatever affirmative steps are
reasonable under the circumstances. Certainly such a duty would
include calling 911, assuming there is cell phone service. Moreover,
once the motorist has stopped, the he cannot “unassume” the duty
by getting back in his car and driving away. Of course, once
emergency responders have arrived, he could leave, since reasonable
care would not require him to stick around.
One rationale the courts have articulated for the assumption-of-duty
rule is that once a bystander voluntarily intercedes to render aid, this
makes it less likely that other people will do so. So if a would-be
rescuer comes to the aid of someone, but then acts carelessly or fails
to follow through, the plaintiff will be left in a worse position than if
the defendant had never stopped in the first place.

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The Tarasoff Exception
One particular exception to the no-affirmative-duty rule is unique
enough that it is largely associated with the case that announced it:
Tarasoff v. UC Regents. The case held that a psychotherapist has a duty
to warn third persons of potential dangers that have been revealed in
the course of psychotherapy. Thus, if a patient tells a therapist about
difficult-to-control urges to do harm to a third person, then a duty
running from the therapist to the third party may be triggered. This
rule is distinguished from the special-relationship exception discussed
above. Under the special-relationship rule, the psychotherapist has
affirmative duties to a patient. The Tarasoff rule, by contrast, creates
an affirmative duty on the part of the psychotherapist to a person
with whom the psychotherapist has no relationship at all.
Case: Tarasoff v. UC Regents
The following case led a seachange in the law of liability for
psychotherapists. And like Boyd, it is a good case to ask whether you
find the court’s use of precedent persuasive.

Tarasoff v. Regents of the University of California
Supreme Court of California
July 1, 1976
17 Cal. 3d 425. VITALY TARASOFF et al., Plaintiffs and
Appellants, v. THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA et al., Defendants and Respondents. S.F. No.
23042. Judges: Opinion by Tobriner, J., with Wright, C. J.,
Sullivan and Richardson, JJ., concurring. Separate concurring
and dissenting opinion by Mosk, J. Separate dissenting opinion
by Clark, J., with McComb, J., concurring.
Justice MATHEW O. TOBRINER:
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

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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.
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. The
therapist defendants include Dr. Moore, the psychologist who
examined Poddar and decided that Poddar should be
committed; Dr. Gold and Dr. Yandell, psychiatrists at Cowell
Memorial Hospital who concurred in Moore’s decision; and Dr.
Powelson, chief of the department of psychiatry, who
countermanded Moore’s decision and directed that the staff take
no action to confine Poddar. The police defendants include
Officers Atkinson, Brownrigg and Halleran, who detained
Poddar briefly but released him; Chief Beall, who received
Moore’s letter recommending that Poddar be confined; and
Officer Teel, who, along with Officer Atkinson, received
Moore’s oral communication requesting detention of Poddar.
This appeal ensued.
Plaintiffs’ complaints predicate liability on two grounds:
defendants’ failure to warn plaintiffs of the impending danger
and their failure to bring about Poddar’s confinement pursuant
to the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000
ff.) Defendants, in turn, assert that they owed no duty of
reasonable care to Tatiana and that they are immune from suit
under the California Tort Claims Act of 1963 (Gov. Code, § 810
ff.).
We shall explain that defendant therapists cannot escape liability
merely because Tatiana herself was not their patient. When a
therapist determines, or pursuant to the standards of his
profession should determine, that his patient presents a serious
danger of violence to another, he incurs an obligation to use
reasonable care to protect the intended victim against such
danger. The discharge of this duty may require the therapist to

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take one or more of various steps, depending upon the nature of
the case. Thus it may call for him to warn the intended victim or
others likely to apprise the victim of the danger, to notify the
police, or to take whatever other steps are reasonably necessary
under the circumstances.
In the case at bar, plaintiffs admit that defendant therapists
notified the police, but argue on appeal that the therapists failed
to exercise reasonable care to protect Tatiana in that they did
not confine Poddar and did not warn Tatiana or others likely to
apprise her of the danger. Defendant therapists, however, are
public employees. Consequently, to the extent that plaintiffs
seek to predicate liability upon the therapists’ failure to bring
about Poddar’s confinement, the therapists can claim immunity
under Government Code section 856. No specific statutory
provision, however, shields them from liability based upon
failure to warn Tatiana or others likely to apprise her of the
danger, and Government Code section 820.2 does not protect
such failure as an exercise of discretion.
Plaintiffs therefore can amend their complaints to allege that,
regardless of the therapists’ unsuccessful attempt to confine
Poddar, since they knew that Poddar was at large and
dangerous, their failure to warn Tatiana or others likely to
apprise her of the danger constituted a breach of the therapists’
duty to exercise reasonable care to protect Tatiana.
Plaintiffs, however, plead no relationship between Poddar and
the police defendants which would impose upon them any duty
to Tatiana, and plaintiffs suggest no other basis for such a duty.
Plaintiffs have, therefore, failed to show that the trial court erred
in sustaining the demurrer of the police defendants without
leave to amend.
1. Plaintiffs’ complaints
Plaintiffs, Tatiana’s mother and father, filed separate but
virtually identical second amended complaints. The issue before
us on this appeal is whether those complaints now state, or can
be amended to state, causes of action against defendants. We

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therefore begin by setting forth the pertinent allegations of the
complaints.
Plaintiffs’ first cause of action, entitled “Failure to Detain a
Dangerous Patient,” alleges that on August 20, 1969, Poddar
was a voluntary outpatient receiving therapy at Cowell Memorial
Hospital. Poddar informed Moore, his therapist, that he was
going to kill an unnamed girl, readily identifiable as Tatiana,
when she returned home from spending the summer in Brazil.
Moore, with the concurrence of Dr. Gold, who had initially
examined Poddar, and Dr. Yandell, assistant to the director of
the department of psychiatry, decided that Poddar should be
committed for observation in a mental hospital. Moore orally
notified Officers Atkinson and Teel of the campus police that
he would request commitment. He then sent a letter to Police
Chief William Beall requesting the assistance of the police
department in securing Poddar’s confinement.
Officers Atkinson, Brownrigg, and Halleran took Poddar into
custody, but, satisfied that Poddar was rational, released him on
his promise to stay away from Tatiana. Powelson, director of the
department of psychiatry at Cowell Memorial Hospital, then
asked the police to return Moore’s letter, directed that all copies
of the letter and notes that Moore had taken as therapist be
destroyed, and “ordered no action to place Prosenjit Poddar in
72-hour treatment and evaluation facility.”
Plaintiffs’ second cause of action, entitled “Failure to Warn On
a Dangerous Patient,” incorporates the allegations of the first
cause of action, but adds the assertion that defendants
negligently permitted Poddar to be released from police custody
without “notifying the parents of Tatiana Tarasoff that their
daughter was in grave danger from Posenjit Poddar.” Poddar
persuaded Tatiana’s brother to share an apartment with him
near Tatiana’s residence; shortly after her return from Brazil,
Poddar went to her residence and killed her.~
2. Plaintiffs can state a cause of action against defendant
therapists for negligent failure to protect Tatiana.

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The second cause of action can be amended to allege that
Tatiana’s death proximately resulted from defendants’ negligent
failure to warn Tatiana or others likely to apprise her of her
danger. Plaintiffs contend that as amended, such allegations of
negligence and proximate causation, with resulting damages,
establish a cause of action. Defendants, however, contend that
in the circumstances of the present case they owed no duty of
care to Tatiana or her parents and that, in the absence of such
duty, they were free to act in careless disregard of Tatiana’s life
and safety.
In analyzing this issue, we bear in mind that legal duties are not
discoverable facts of nature, but merely conclusory expressions
that, in cases of a particular type, liability should be imposed for
damage done. As stated in Dillon v. Legg (1968) 68 Cal.2d 728,
734: “The assertion that liability must … be denied because
defendant bears no ‘duty’ to plaintiff ‘begs the essential question
– whether the plaintiff’s interests are entitled to legal protection
against the defendant’s conduct. … [Duty] is not sacrosanct in
itself, but only an expression of the sum total of those
considerations of policy which lead the law to say that the
particular plaintiff is entitled to protection.’ (Prosser, Law of
Torts [3d ed. 1964] at pp. 332-333.)”
In the landmark case of Rowland v. Christian (1968) 69 Cal.2d
108, Justice Peters recognized that liability should be imposed
“for injury occasioned to another by his want of ordinary care or
skill” as expressed in section 1714 of the Civil Code. (3) Thus,
Justice Peters, quoting from Heaven v. Pender (1883) 11 Q.B.D.
503, 509 stated: “‘whenever one person is by circumstances
placed in such a position with regard to another … that if he
did not use ordinary care and skill in his own conduct … 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.’”
We depart from “this fundamental principle” only upon the
“balancing of a number of considerations”; major ones “are the
foreseeability of harm to the plaintiff, the degree of certainty
that the plaintiff suffered injury, the closeness of the connection

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between the defendant’s conduct and the injury suffered, the
moral blame attached to the defendant’s conduct, the policy of
preventing future harm, the extent of the burden to the
defendant and consequences to the community of imposing a
duty to exercise care with resulting liability for breach, and the
availability, cost and prevalence of insurance for the risk
involved.”
The most important of these considerations 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.” As we shall explain, however, when
the avoidance of foreseeable harm requires a defendant to
control the conduct of another person, or to warn of such
conduct, the common law has traditionally imposed liability only
if the defendant bears some special relationship to the
dangerous person or to the potential victim. Since the
relationship between a therapist and his patient satisfies this
requirement, we need not here decide whether foreseeability
alone is sufficient to create a duty to exercise reasonable care to
protect a potential victim of another’s conduct.
Although, as we have stated above, under the common law, as a
general rule, one person owed no duty to control the conduct of
another, the courts have carved out an exception to this rule in
cases in which the defendant stands in some special relationship
to either the person 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.”

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Although plaintiffs’ pleadings assert no special relation between
Tatiana and defendant therapists, they establish as between
Poddar and defendant therapists the special 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.
Although the California decisions that recognize this duty have
involved cases in which the defendant stood in a special
relationship both to the victim and to the person whose conduct
created the danger, we do not think that the duty should
logically be constricted to such situations. [For example,] Ellis
v. D’Angelo (1953) 116 Cal.App.2d 310, upheld a cause of action
against parents who failed to warn a babysitter of the violent
proclivities of their child; Johnson v. State of California (1968) 69
Cal.2d 782, upheld a suit against the state for failure to warn
foster parents of the dangerous tendencies of their ward; Morgan
v. County of Yuba (1964) 230 Cal.App.2d 938, sustained a cause of
action against a sheriff who had promised to warn decedent
before releasing a dangerous prisoner, but failed to do so.
Decisions of other jurisdictions hold that the single relationship
of a doctor to his patient is sufficient to support the duty to
exercise reasonable care to protect others against dangers
emanating from the patient’s illness. The courts hold that a
doctor is liable to persons infected by his patient if he
negligently fails to diagnose a contagious disease, or, having
diagnosed the illness, fails to warn members of the patient’s
family.
Since it involved a dangerous mental patient, the decision in
Merchants Nat. Bank & Trust Co. of Fargo v. United States (D.N.D.
1967) 272 F.Supp. 409 comes closer to the issue. The Veterans
Administration arranged for the patient to work on a local farm,
but did not inform the farmer of the man’s background. The
farmer consequently permitted the patient to come and go freely

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during nonworking hours; the patient borrowed a car, drove to
his wife’s residence and killed her. Notwithstanding the lack of
any “special relationship” between the Veterans Administration
and the wife, the court found the Veterans Administration liable
for the wrongful death of the wife.
In their summary of the relevant rulings Fleming and Maximov
conclude that the “case law should dispel any notion that to
impose on the therapists a duty to take precautions for the
safety of persons threatened by a patient, where due care so
requires, is in any way opposed to contemporary ground rules
on the duty relationship. On the contrary, there now seems to
be sufficient authority to support the conclusion that by
entering into a doctor-patient relationship the therapist becomes
sufficiently involved to assume some responsibility for the
safety, not only of the patient himself, but also of any third
person whom the doctor knows to be threatened by the
patient.” (Fleming & Maximov, The Patient or His Victim: The
Therapist’s Dilemma (1974) 62 CAL. L. REV. 1025, 1030.)
Defendants contend, however, that imposition of a duty to
exercise reasonable care to protect third persons is unworkable
because therapists cannot accurately predict whether or not a
patient will resort to violence. In support of this argument
amicus representing the American Psychiatric Association and
other professional societies cites numerous articles which
indicate that therapists, in the present state of the art, are unable
reliably to predict violent acts; their forecasts, amicus claims,
tend consistently to overpredict violence, and indeed are more
often wrong than right. Since predictions of violence are often
erroneous, amicus concludes, the courts should not render
rulings that predicate the liability of therapists upon the validity
of such predictions.
The role of the psychiatrist, who is indeed a practitioner of
medicine, and that of the psychologist who performs an allied
function, are like that of the physician who must conform to the
standards of the profession and who must often make diagnoses
and predictions based upon such evaluations. Thus the
judgment of the therapist in diagnosing emotional disorders and

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in predicting whether a patient presents a serious danger of
violence is comparable to the judgment which doctors and
professionals must regularly render under accepted rules of
responsibility.
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.” Within the broad range of reasonable
practice and treatment in which professional opinion and
judgment may differ, the therapist is free to exercise his or her
own best judgment without liability; proof, aided by hindsight,
that he or she judged wrongly is insufficient to establish
negligence.
In the instant case, however, the pleadings 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.
Amicus contends, however, that even when a therapist does in
fact predict that a patient poses a serious danger of violence to
others, the therapist should be absolved of any responsibility for
failing to act to protect the potential victim. In our view,
however, once a therapist does in fact determine, or under
applicable professional standards reasonably should have
determined, that a patient poses a serious danger of violence to
others, he bears a duty to exercise reasonable care to protect the
foreseeable victim of that danger. While the discharge of this
duty of due care will necessarily vary with the facts of each case,
in each instance the adequacy of the therapist’s conduct must be
measured against the traditional negligence standard of the
rendition of reasonable care under the circumstances. As
explained in Fleming and Maximov, The Patient or His Victim: The

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Therapist’s Dilemma (1974) 62 CAL. L. REV. 1025, 1067: “… the
ultimate question of resolving the tension between the
conflicting interests of patient and potential victim is one of
social policy, not professional expertise. … In sum, the therapist
owes a legal duty not only to his patient, but also to his patient’s
would-be victim and is subject in both respects to scrutiny by
judge and jury.”~
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 therapist cannot predict with accuracy that his
patient will commit the crime.
Defendants further argue that free and open communication is
essential to psychotherapy; that “Unless a patient … is assured
that … information [revealed by him] can and will be held in
utmost confidence, he will be reluctant to make the full
disclosure upon which diagnosis and treatment … depends.”
(Sen. Com. on Judiciary, comment on Evid. Code, § 1014.) The
giving of a warning, defendants contend, constitutes a breach of
trust which entails the revelation of confidential
communications.


Counsel for defendant Regents and amicus American
Psychiatric Association predict that a decision of this court
holding that a therapist may bear a duty to warn a potential
victim will deter violence-prone persons from seeking therapy,
and hamper the treatment of other patients.~ In In re Lifschutz,
counsel for the psychiatrist argued that if the state could compel
disclosure of some psychotherapeutic communications,
psychotherapy could no longer be practiced successfully. We
rejected that argument, and it does not appear that our decision
in fact adversely affected the practice of psychotherapy in
California. Counsels’ forecast of harm in the present case strikes
us as equally dubious.~
We recognize the public interest in supporting effective
treatment of mental illness and in protecting the rights of

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patients to privacy, and the consequent public importance of
safeguarding the confidential character of psychotherapeutic
communication. Against this interest, however, we must weigh
the public interest in safety from violent assault. The Legislature
has undertaken the difficult task of balancing the countervailing
concerns. In Evidence Code section 1014, it established a broad
rule of privilege to protect confidential communications
between patient and psychotherapist. In Evidence Code section
1024, the Legislature created a specific and limited exception to
the psychotherapist-patient privilege: “There is no privilege …
if the psychotherapist has reasonable cause to believe that the
patient is in such mental or emotional condition as to be
dangerous to himself or to the person or property of another
and that disclosure of the communication is necessary to
prevent the threatened danger.”~
Our current crowded and computerized society compels the
interdependence of its members. In this risk-infested society we
can hardly tolerate the further exposure to danger that would
result from a concealed knowledge of the therapist that his
patient was lethal. If the exercise of reasonable care to protect
the threatened victim requires the therapist to warn the
endangered party or those who can reasonably be expected to
notify him, we see no sufficient societal interest that would
protect and justify concealment. The containment of such risks
lies in the public interest. For the foregoing reasons, we find that
plaintiffs’ complaints can be amended to state a cause of action
against defendants Moore, Powelson, Gold, and Yandell and
against the Regents as their employer, for breach of a duty to
exercise reasonable care to protect Tatiana.~
Justice STANLEY MOSK, concurring and dissenting:
I concur in the result in this instance only because the
complaints allege that defendant therapists did in fact predict
that Poddar would kill and were therefore negligent in failing to
warn of that danger. Thus the issue here is very narrow: we are
not concerned with whether the therapists, pursuant to the
standards of their profession, “should have” predicted potential

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violence; they allegedly did so in actuality. Under these limited
circumstances I agree that a cause of action can be stated.
Whether plaintiffs can ultimately prevail is problematical at best.
As the complaints admit, the therapists did notify the police that
Poddar was planning to kill a girl identifiable as Tatiana. While I
doubt that more should be required, this issue may be raised in
defense and its determination is a question of fact.
I cannot concur, however, in the majority’s rule that a therapist
may be held liable for failing to predict his patient’s tendency to
violence if other practitioners, pursuant to the “standards of the
profession,” would have done so. The question is, what
standards? Defendants and a responsible amicus curiae,
supported by an impressive body of literature discussed at
length in our recent opinion in People v. Burnick (1975) 14 Cal.3d
306, demonstrate that psychiatric predictions of violence are
inherently unreliable.
In Burnick, at pages 325-326, we observed: “In the light of recent
studies it is no longer heresy to question the reliability of
psychiatric predictions. Psychiatrists themselves would be the
first to admit that however desirable an infallible crystal ball
might be, it is not among the tools of their profession. It must
be conceded that psychiatrists still experience considerable
difficulty in confidently and accurately diagnosing mental illness.
Yet those difficulties are multiplied manyfold when psychiatrists
venture from diagnosis to prognosis and undertake to predict
the consequences of such illness~.
I would restructure the rule designed by the majority to
eliminate all reference to conformity to standards of the
profession in predicting violence. If a psychiatrist does in fact
predict violence, then a duty to warn arises. The majority’s
expansion of that rule will take us from the world of reality into
the wonderland of clairvoyance.
Justice WILLIAM PATRICK CLARK, JR., dissenting:
Until today’s majority opinion, both legal and medical
authorities have agreed that confidentiality is essential to
effectively treat the mentally ill, and that imposing a duty on

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doctors to disclose patient threats to potential victims would
greatly impair treatment. Further, recognizing that effective
treatment and society’s safety are necessarily intertwined, the
Legislature has already decided effective and confidential
treatment is preferred over imposition of a duty to warn.
The issue whether effective treatment for the mentally ill should
be sacrificed to a system of warnings is, in my opinion, properly
one for the Legislature, and we are bound by its judgment.
Moreover, even in the absence of clear legislative direction, we
must reach the same conclusion because imposing the majority’s
new duty is certain to result in a net increase in violence.~
The tragedy of Tatiana Tarasoff has led the majority to disregard
the clear legislative mandate of the Lanterman-Petris-Short Act.
Worse, the majority impedes medical treatment, resulting in
increased violence from – and deprivation of liberty to – the
mentally ill.
We should accept legislative and medical judgment, relying upon
effective treatment rather than on indiscriminate warning.~

Questions to Ponder About Tarasoff
A. Both Tarasoff and Boyd implicate questions about the effect that
the court’s decision may have on future behavior. For instance, in
Boyd there was a concern that finding a duty would encourage the
use of hostages in future hold-ups. In Tarasoff, there is a concern
that finding a duty will cause future psychotherapy patients to be less
revelatory in therapy sessions, thereby making therapy less effective,
which ultimately will cause society greater harm than the occasional
harm done to third parties that might have been prevented with a
warning. What do you think of that concern? Is there a difference
between Boyd and Tarasoff on this score?
B. This case, like many, raises the question of whether the courts or
legislatures are better equipped to deal with the competing concerns
raised in considering a change to tort law. In what ways might
legislatures be better than courts in making such changes? In what
ways might courts be better than legislatures?

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6. Breach of the Duty of Care
“What's called for here is not paranoia but its uptown cousin,
reasonable caution.”
– Brendan I. Koerner, Wired Magazine, 2010
“I did my best, but I guess my best wasn’t good enough.”
– James Ingram, in a song written by Cynthia Weil, 1981

Determining Breach, in General
The next element in the negligence case is breach of the duty of care.
Very roughly, this gets at the question of whether the defendant was
“being careless.” In this sense, the breach element is really at the
heart of negligence cause of action.
Terminology Note: Negligence vs. Negligence
This is a good point at which to pause to note some potentially
confusing issues regarding terminology.
The term “negligence” is used for two different concepts. One use of
the word “negligence” is to denote a legal cause of action, a basis
upon which one person can sue another. This is the sense in which
we have been using the word up to now. The other use of the word
“negligence” is as a synonym for “carelessness.” And in this sense,
“negligence” is sometimes used to refer to the breach of the duty of
care. In this vein, a person might say “the defendant was negligent”
or “the defendant’s actions constituted negligence” as a way of saying
that “the defendant breached his or her duty of care.” Of course it
seems circular to speak of “negligence” as being just one of the
several elements of “negligence.” But the apparent circularity is
resolved when you understand the separate senses in which the word
may be used.

More often than not the noun “negligence” refers to the cause of
action, while the adjective “negligent” refers to the breach element.
But you cannot count on the noun/adjective distinction to tell the
concepts apart, because they often go the other way as well. To be
literate in reading cases, briefs, and other documents, you will need to
learn to look past the word to the concept it represents. It may sound
confusing now, but if you keep reading, this is something that will
soon come to you naturally, without conscious thought.
The Essential Question: Was the Risk Unreasonable?
To speak in very broad terms, the breach question essentially comes
down to the question of whether the risk was reasonable. Certainly
there is much more the law has to say about the matter – and this
chapter will cover that. But in terms of the basic idea, breach is
defined by what can reasonably be expected of people living in civil
society who do not wish to cause harm.
An example will help show reasonableness in action.

Example: Banana Peels and Lasers – Suppose a woman
slips and falls on a banana peel in the produce aisle of the
grocery store, causing her to suffer a broken wrist. Suppose
also that the banana peel had only been there for a couple of
minutes before the woman slipped. On these facts, can the
woman establish a prima facie case for negligence against the
grocery story? No, she cannot. But why not? It is certainly
true that the grocery store could have prevented the accident
if it had really wanted to. The store could have installed a
sophisticated laser-tripwire alarm system to detect the
presence of any foreign object on the floor. Or the grocery
store could have hired a large number of employees to act as
sentries, guarding every aisle to provide constant monitoring
of all floors for hazards. Those things would have prevented
the accident. But it is not reasonable to expect stores to do
these sorts of things. The law only requires people to be
reasonably careful, not triple-extra-super-duper careful.

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Distinguishing Breach from the Other Elements
Remember that each element in the negligence cause of action is
essential to presenting a prima facie case. If a plaintiff can prove that
a defendant owed the plaintiff a duty of care and undertook an action
that actually and proximately caused an injury to the plaintiff’s person
or property, there can still be no recovery if there is no breach.
Consider again the banana case. Notice that in that case, absolutely
every other element of the negligence case is there. There is a duty of
care: That is easy, because stores owe their customers a duty of care.
There is also actual causation: But for the banana peel being in the
aisle, there would be no injury. Proximate causation is satisfied as
well: There is a very direct connection between the presence of the
banana peel and the broken wrist, and a slip-and-fall is a foreseeable
consequence of an abandoned banana peel in a walkway. The
existence-of-damages element is satisfied also: There is a broken
wrist. What is missing is the breach element. It is the breach element
– and it alone – that prevents the unlucky shopper from recovering
from the grocery store.
Case: Rogers v. Retrum
The following case is an example of a situation in which all the
elements of a negligence cause of action are present except for
breach of the duty of care. The court takes pains to explain why it all
comes down to breach, and because of this, the case provides an
excellent introduction to the breach element.
One thing to note about the terminology in the case: What the court
calls “legal cause” is a lumping together of what this casebook treats
as two separate elements: actual causation and proximate causation.
Moreover, instead of using the term “actual causation,” the case uses
the terms “but-for causation” and “causation-in-fact.”

Rogers v. Retrum
Court of Appeals of Arizona, Division One, Department E
July 18, 1991
170 Ariz. 399. Kevin C. ROGERS, a minor, by and through his
next best friend and natural mother, Sheila E. STANDLEY,

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Plaintiffs-Appellants, v. Randolph RETRUM and Jane Doe
Retrum, husband and wife; Prescott Unified School District,
Defendants-Appellees. No. 1 CA-CV 89-356.
Judge NOEL FIDEL:
Plaintiff Kevin C. Rogers appeals from summary judgment
entered for defendants Randolph Retrum and Prescott Unified
School District on plaintiff’s negligence claim. We affirm
summary judgment because plaintiff’s injury did not result from
an unreasonable risk that may be charged to the conduct of
these defendants.
FACTUAL AND PROCEDURAL HISTORY
We state the facts, as always, in the light most favorable to the
party appealing from summary judgment.
On the morning of February 5, 1989, Kevin C. Rogers, a
sixteen-year-old junior at Prescott High School, completed an
advanced electronics test. Although Rogers anticipated a good
grade, the teacher, Randolph Retrum, publicly gave him a failing
grade. When Rogers asked why, Retrum threw the test in his
direction and answered, “Because I don’t like you.”
Although class was not over, Retrum permitted students to
leave class as they pleased, and Prescott High School permitted
students to enter and leave the campus freely. (The defendants
dispute these allegations, but also acknowledge that we must
accept them as truthful for the purpose of reviewing summary
judgment.)
Humiliated and upset, Rogers left class with a friend named
Natalo Russo, punching a wall and kicking some trash cans on
his way to Russo’s car. As Russo tried to calm him, the friends
left campus in Russo’s car by a meandering route that eventually
led them eastward on Iron Springs Road. There Russo, the
driver, accelerated and lost control, passing in a curve at a speed
exceeding 90 miles per hour. When the car struck an
embankment, landed on its nose, and slid several hundred feet,
Rogers was ejected and sustained the injuries for which he sues.

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After the accident, Retrum admitted that Rogers had actually
passed the test. Retrum had falsely given Rogers a failing grade
because Rogers had always done well in the class and Retrum
“wanted [Rogers] to know what it felt like to fail.”
Rogers settled negligence claims against Natalo Russo and his
parents, and the trial court granted summary judgment rejecting
Rogers’s negligence claims against Retrum and the district. From
this judgment, Rogers appeals.
PLAINTIFF’S CLAIM OF NEGLIGENCE
We first point out that Retrum’s alleged conduct, however
egregious, is not the causal focus of plaintiff’s claim. If, in the
flush of first reaction, plaintiff had blindly run into harm’s way,
we would examine the range of foreseeable, unreasonable risks
that might be attributed to a teacher’s false and deliberate
humiliation of an impressionable teenager entrusted to his class.
Plaintiff, however, stepped into his friend Natalo Russo’s car.
And plaintiff’s counsel has conceded at oral argument that there
is no evidence that Retrum’s words to Rogers affected Russo’s
operation of his car.
Counsel instead targets Retrum’s “open class” and the district’s
“open campus” policies as the causal negligence in this case. By
these policies, according to counsel, defendants breached their
supervisory duty to plaintiff and exposed him to the risk of
highway injury when he should have been in class. We confine
our analysis to this claim.
DUTY
The first question in a negligence case is whether the defendants
owed a duty to the plaintiff. We find that defendants had a
relationship with plaintiff that entailed a duty of reasonable care.
Our supreme court has distilled, as the essence of duty, the
obligation to act reasonably in the light of foreseeable and
unreasonable risks.
Clearly, school teachers and administrators are “under [an]
obligation for the benefit of” the students within their charge.
This obligation includes the duty not to subject those students,

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through acts, omissions, or school policy, to a foreseeable and
unreasonable risk of harm.
LEGAL CAUSE
We next take up defendants’ argument that summary judgment
may be affirmed on the ground that Russo’s driving was an
intervening, superseding cause. We do so before reaching the
dispositive question of breach of duty because questions of
breach and cause are too often confused and this case may serve
to delineate them. We are guided by the comment of Professors
Prosser and Keeton that
[i]n [certain] cases the standard of reasonable
conduct does not require the defendant to
recognize the risk, or to take precautions against
it. … In these cases the defendant is simply not
negligent. When the courts say that his conduct
is not “the proximate cause” of the harm, they
not only obscure the real issue, but suggest
artificial distinctions of causation which have no
sound basis, and can only arise to plague them
in the future.
Prosser and Keeton, supra § 42, at 275; see also Tucker v. Collar, 79
Ariz. 141, 145 (1955) (“Much confusion has resulted from many
courts disposing of cases upon the ground defendant’s act was
not the proximate cause of an injury when the proper basis was
that there was no negligence.”).
One element of legal cause is “but-for causation” or causationin-fact. See Ontiveros v. Borak, 136 Ariz. 500, 505 (1983) (“[A]s far
as causation-in-fact is concerned, the general rule is that a
defendant may be held liable if his conduct contributed to the
result and if that result would not have occurred ‘but for’
defendant’s conduct.”). This element is adequately established; a
jury might reasonably find that, but for the open campus and
classroom policies plaintiff complains of, Rogers and Russo
would have been at school at 9:10 a.m. on February 5, 1989, and
not in a car on Iron Springs Road.
The more elusive element of legal cause is foreseeability, and
this, according to defendants, is lacking in this case. They argue:

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[N]o reasonable person could or should have
realized Russo would drive in a criminally
reckless manner at 100 miles an hour so as to
cause an accident. Thus it is the intervening
superseding act of fellow student Russo, not the
act of Retrum or Prescott Schools[,] which was
the proximate cause of plaintiff’s injury.
We decline to affirm the trial court’s judgment on this ground.
First, “we must take a broad view of the class of risks and
victims that are foreseeable, and the particular manner in which
the injury is brought about need not be foreseeable.” Schnyder v.
Empire Metals, Inc., 136 Ariz. 428, 431 (App.1983). It is not
unforeseeable that mobile high school students, permitted to
leave campus during classroom hours, will be exposed to the
risk of roadway accidents.
Second, the reckless or criminal nature of an intervenor’s
conduct does not place it beyond the scope of a duty of
reasonable care if that duty entails foresight and prevention of
precisely such a risk.~
The condition created by defendants’ negligent conduct,
according to plaintiff, was exposure to a preventable risk of
vehicular injury off school grounds. Inherent in the risk of
vehicular injury is the prospect of an intervenor’s negligent or
reckless driving of a car; to foresee the injurious end is to
foresee that a careless intervenor, one way or another, may be
the means. For this reason, it does not advance analysis in this
case to focus on the details of the intervenor’s conduct. The
essential question is not whether the district might have
foreseen the risk of vehicular injury but whether the district,
given its supervisory responsibilities, was obliged to take
precautionary measures. This question, we conclude, is neither
one of duty nor causation; it is one of breach.
A useful contrast is provided by Williams v. Stewart, 145 Ariz. 602
(App.1985). When a maintenance worker entered a swimming
pool to unclog the drain, the dirty water allegedly caused his
preexisting sinus infection to spread to his brain. Division Two
of this court affirmed summary judgment, stating:

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Even assuming that [a persistent failure to clean
the pool] created an unreasonable risk of some
kinds of harm, Williams’ injury was well outside
the scope of foreseeable risk, was unrelated to
what made the conduct negligent, and no
liability resulted. This is not a case “where the
duty breached was one imposed to prevent the
type of harm which plaintiff ultimately
sustained.”
The same cannot be said in this case. Here, to paraphrase
[Williams by Williams], assuming that the school’s failure to
restrict egress from campus created an unreasonable risk of
vehicular injury off campus, plaintiff’s injury was within the
scope of foreseeable risk. Analysis thus shifts from the causal
question whether the risk was foreseeable to the negligence
question whether the risk was unreasonable.
UNREASONABLE RISK
Not every foreseeable risk is an unreasonable risk. It does not
suffice to establish liability to prove (a) that defendant owed
plaintiff a duty of reasonable care; (b) that an act or omission of
defendant was a contributing cause of injury to plaintiff; and (c)
that the risk of injury should have been foreseeable to
defendant. The question whether the risk was unreasonable
remains. This last question merges with foreseeability to set the
scope of the duty of reasonable care. Cf. 3 F. Harper, F. James &
O. Gray, The Law of Torts § 18.2, at 656-57 (2d ed. 1986) (“[T]he
inquiry into the scope of duty is concerned with exactly the
same factors as is the inquiry into whether conduct is
unreasonably dangerous (i.e., negligent).” ).
To decide whether a risk was unreasonable requires an
evaluative judgment ordinarily left to the jury. “Summary
judgment is generally not appropriate in negligence actions.”
Tribe v. Shell Oil Co., Inc., 133 Ariz. 517, 518 (1982). However, in
approaching the question of negligence or unreasonable risk,
the courts set outer limits. A jury will not be
permitted to require a party to take a precaution
that is clearly unreasonable. … Thus, for

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example, the jury may not require a train to stop
before passing over each grade crossing in the
country.
3 F. Harper, F. James & O. Gray, supra § 15.3, at 355-57.
In describing the question whether a risk was unreasonable as
requiring evaluative judgment, we acknowledge that the question
does not fall neatly into the category of question of fact or the
category of question of law. These categories serve less as guides
to analysis than as labels that attach after the court has decided
whether to leave evaluation to the jury or preempt it for the
court. See James, Functions of Judge and Jury in Negligence Cases, 58
Yale L.J. 667, 667-68 (1949) (The common generality that
questions of law are for the court and questions of fact for the
jury “has never been fully true in either of its branches and tells
us little or nothing that is helpful.”)~.
Coburn v. City of Tucson is a recent example of the court’s
preemption of the question of unreasonable risk. There, a child
eastbound on a bicycle was struck and killed by a southbound
driver in an intersection collision. 143 Ariz. at 51. The child had
ignored a stop sign and entered the intersection in the lane of
westbound (oncoming) traffic. The child could not see the
driver approaching because a bush at the northwest corner
obscured his view. The child’s parents sued the city for failure to
remove the bush; the city both controlled the street and owned
the lot where the bush grew. Id. The evidence established,
however, that the bush would not have obstructed the view of
south- or northbound traffic for any eastbound cyclist or driver
who had stayed in the eastbound lane and stopped at the stop
sign. Id. at 54. The supreme court affirmed summary judgment
for the city, finding that the city had not breached its duty to
provide intersections that are reasonably safe.
The lack of liability may be framed in terms of
duty, but we prefer that duty be recognized as a
distinct element involving the obligation of the
actor to protect the other from harm. Here,
there was a duty, but no negligence; therefore,
there is no liability.

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Id. (citations omitted).
We make the same determination in this case. Members of our
mobile society face the risk of collision whenever they are in
cars. This risk is arguably higher for teenage passengers of
teenage drivers. The school in this case, however, did nothing to
increase this general risk. It did not, for example, leave students
inadequately supervised or instructed in a driver’s education
class. It did not tolerate drinking at a school affair. It simply
chose not to restrict students to campus during the school day
and thereby shield them from the ordinary risk of vehicular
harm that they would face when out of school. We conclude
that “the standard of reasonable conduct [did] not require the
defendant[s] to … take precautions against” that risk. Prosser
and Keeton, supra § 42, at 275. More simply stated, the
defendants’ omission did not create an unreasonable risk of
harm.
Although, in taking this issue from the jury, we find that
reasonable persons could not differ, we do not mask the
element of policy in our choice. First, the question of the legal
consequence of an open campus high school policy is not a
random judgment best left to case-by-case assessment, but a
question likely to recur and one on which school boards need
some guidance. Second, policy considerations appropriate to
local school boards – local transportation options, inter-school
transfer arrangements, and extracurricular activity locations, for
example – are pertinent to the decision whether restrictions
should be placed on high school students coming and going
from the campus during ordinary hours. Finally, and most
significantly, we decline to make high school districts that adopt
an open campus policy insurers against the ordinary risks of
vehicular injury that students face in driving off school grounds.
This is not to suggest that a school’s supervisory omissions can
never give rise to liability for an accident off campus. We do not
pretend that the range of foreseeable and unreasonable risks
from supervisory omissions is automatically circumscribed by
the school fence.

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Nor do we suggest that a calculus of unreasonable risk will yield
equivalent results at every level of the schools. We leave for
resolution in other unsupervised egress cases such questions as
whether parents’ supervisory expectations may reasonably differ
at differing levels of the schools and whether the risks that may
be deemed unreasonable may likewise differ with the age of the
student involved.
In a prior elementary school case, our court held that the
abduction and slaying of a ten-year-old child who left campus
without permission were unforeseeable consequences of the
school’s alleged supervisory lapse. However, because cases after
Chavez have stressed that “we must take a broad view of the
class of risks and victims that are foreseeable,” we have
recognized the question of unreasonable risk – not the question
of foreseeable risk – as dispositive in this case.
Our limited holding in this case is that the defendant high
school and its teacher did not subject the plaintiff high school
student to an unreasonable risk of vehicular injury by permitting
unsupervised egress from class and campus during the school
day.
CONCLUSION
Because plaintiff’s injury was not a result within an unreasonable
risk created by defendants, we hold that defendants were not
negligent. The trial court’s summary judgment in favor of
defendants is affirmed.

Intentional Conduct as a Breach of Duty
Can intentional conduct count as a breach of the duty of due care?
The logical answer would seem to be yes. To act with the intent to
harm or with the substantial certainty of causing harm is one way of
failing to act with due care for persons around you.
Nevertheless, several courts have held that intentional conduct
cannot count as a breach of the duty of due care. These cases seem to
focus on the everyday meaning of the word “negligence” as meaning
“carelessness,” rather than looking at the tort of negligence as series

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of elements, which, if proved by the plaintiff, make out a prima facie
case for liability.
An example of this approach is found in American National Fire
Insurance Co. v. Schuss, 221 Conn. 768 (Conn. 1992), in which the
Connecticut Supreme Court held that the perpetrator of intentional
conduct could not be held liable in negligence. The complaint alleged
that the defendant set fire to a synagogue, and a jury found the
defendant liable in negligence. Yet the trial court set aside the verdict
and the Connecticut Supreme Court affirmed, seeing the evidence
that the defendant set the fire intentionally as a kind of defense to the
negligence claim:
It is axiomatic, in the tort lexicon, that
intentional conduct and negligent conduct,
although differing only by a matter of degree[,]
are separate and mutually exclusive.~ It is true,
of course, that intentional tortious conduct will
ordinarily also involve one aspect of negligent
conduct, namely, that it falls below the objective
standard established by law for the protection of
others against unreasonable risk of harm. That
does not mean, however, as the plaintiff’s
argument suggests, that the same conduct can
reasonably be determined to have been both
intentionally and negligently tortious. The
distinguishing factor between the two is what
the negligent actor does not have in mind: either
the desire to bring about the consequences that
follow or the substantial certainty that they will
occur. If he acted without either that desire or
that certainty, he was negligent; if he acted with
either that desire or that certainty, he acted
intentionally.~ Application of these principles to
the evidence in this case compels the conclusion
that the defendant acted intentionally, and not
merely negligently.

Id. at 775, 777-778 (internal citations omitted).

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The Hawaii Supreme Court explained what it saw as wrong with this
line of thinking in the case of Dairy Road Partners v. Island Insurance Co.,
Ltd., 992 P.2d 93 (Haw. 2000):
We recognize that a number of jurisdictions
have held that evidence of intentional conduct
may not support a claim for negligence. These
decisions are grounded in the proposition that
the words “negligence” and “intentional” are
contradictory, inasmuch as negligence connotes
carelessness,
whereas
intent
connotes
purposefulness. However, in this jurisdiction,
we have never restricted claims sounding in
negligence to unintentional or “careless”
conduct.~ [A] cause of action sounding in
negligence will lie if the defendant breaches a
duty owed to the plaintiff, thereby legally
causing the plaintiff injury. So long as such a
relation exists between the parties that the
community will impose a legal obligation upon
one for the benefit of the other, i.e., so long as
the defendant owes the plaintiff a duty, the
thoughts passing through the defendant’s mind
as he or she breaches that duty are immaterial.
In a tort action, the defendant’s state of mind is
relevant only when the plaintiff alleges that the
defendant’s conduct was intentionally tortious
and/or the plaintiff is seeking to recover
punitive – as opposed to merely compensatory
– damages from the defendant. A showing that
the defendant’s actions were intentional may
allow the plaintiff to obtain punitive as well as
compensatory damages. A plaintiff who fails to
allege such wilful, wanton, malicious, or
intentional conduct – notwithstanding that it
may have occurred – and who, instead, merely
alleges that the defendant breached a duty of
care, waives the opportunity to recover punitive
damages. In effect, such a plaintiff has
“undercharged” his or her case against the
defendant, just as a prosecutor may undercharge
a criminal defendant and successfully convict

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him or her of an offense requiring a lesser state
of mind than that demonstrated by the evidence
of the case. The contrary rule, embraced by
[other] jurisdictions~, leads to the absurdity of
allowing the defendant to raise, as an
exonerating defense to a claim of negligence,
that he or she purposefully injured the plaintiff.~
It is illogical and inequitable to reward a
defendant for morally reprehensible conduct.
Therefore, we respectfully disagree with Schuss
and the other decisions[.]

Id. at 114-16 (internal citations and quotes omitted).

The Reasonable Person Standard of Care
Basics
It is amazing how much of the law comes down to the word
“reasonable.” Just from watching television or reading books, you are
probably already familiar with the concept of “reasonable doubt” in
criminal law. But you will find that much of the law in contracts,
property, and torts – not to mention antitrust, family law, disability
law, and many other fields – also ultimately funnels down to a
question of whether something is reasonable. Certainly not all legal
questions turn on reasonability. But many do. And, as you will see in
this chapter, the breach element of negligence is one of those.
If a defendant owes a plaintiff a duty of care, then the default
standard of care is what the reasonable person would do under the
same circumstances. If the defendant is less careful than the
reasonable person would be, then the duty of care has been breached.
So, for example, if the defendant in a negligence case is alleged to
have caused an accident by texting and driving 10 miles an hour over
the speed limit while applying makeup, then the breach-of-duty
question is: Would the reasonable person have done that while
driving along that freeway at that time under those circumstances? If
not, then the duty of care has been breached.
A classic statement invoking the reasonable person as the way of
determining whether the duty of care has been breached comes from

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Baron Alderson in Blyth v Birmingham Waterworks Co., 11 Ex. Ch. 781
(1856):
“Negligence is the omission to do something
which a reasonable man, guided 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 be liable
for negligence, if, unintentionally, they omitted
to do that which a prudent and reasonable
person would have done, or did that which a
person taking reasonable care would not have
done.”

(Note that in this quote, the first time Baron Alderson uses the word
“negligence,” it is in the sense of breach of the duty of care; the second
instance of the word refers to the cause of action as a whole.)
The reasonable person is a mental construct that is used as a
benchmark for analysis. As such, “reasonable person” is a term of art
in tort law.
It is important that you understand that the reasonable person is not
a real person. She or he does actually exist. When you are in your
torts classroom, look around. No one you see is the reasonable
person. You can search the whole world and never find the
reasonable person. Thus, at the trial of a negligence case, you can
never put “a reasonable person” on the stand as an expert witness
and ask what that person would have done. If such a thing could be
done, it would create the most sought after expert witness in
America. Imagine the plaintiff’s attorney asking, “Reasonable Person,
would you have been driving along the freeway at 85 miles per hour
while applying lipstick and texting?” Personal injury litigation would
be a whole lot simpler if you could do that, but you cannot.
The reasonable person is not merely a person who is reasonable. In
the real world, reasonable people are occasionally careless. But the
reasonable person of negligence law is always careful – 24 hours a
day, every day of her or his hypothetical life.

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It follows that the breach-of-duty question in a negligence case is not
answered by asking whether the defendant is a reasonable person.
The defendant is not the hypothetical reasonable person, and, since
the defendant is a real person, the defendant could never aspire to be
the reasonable person. The relevant question is whether the
defendant was behaving as the reasonable person would have
behaved at the moment of the occurrence being sued over. So a
defendant might be a very careful driver – one who has driven for 40
years without ever having caused an accident or been ticketed for a
moving violation. But that is irrelevant to the breach-of-duty
question. All that matters is whether the defendant’s conduct met the
reasonable person standard at the critical moment when the calamity
started to unfold.
You may think that it is not fair to expect everyone to behave as the
reasonable person at all times. Most people would agree with that.
And negligence law does not imply that everyone should behave as
the reasonable person at all times. The issue in negligence law is
whether, given that someone has suffered a injury or property damage, it is
more fair for the plaintiff or the defendant to bear the burden of the
loss. The answer from negligence law is that it is more fair for the
burden to fall on the defendant if the defendant’s level of care fell
below that of the hypothetical reasonable person.
An Objective Standard
The reasonable person standard is an objective one. It requires
evaluating the situation as if viewing it from above. By contrast, a
subjective standard would go to what a person’s own thoughts were.
If the reasonable person standard were a subjective standard, you
could successfully defend a negligence lawsuit by convincing the jury
that you genuinely thought you were being reasonable – that you
were “trying your best.” Yet under the objective reasonable person
standard, if your best isn’t as good as the reasonable person, then
your best isn’t good enough.
Case: Vaughn v. Menlove
This case is the classic example illustrating the reasonable person standard
and its objective nature.

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Vaughan v. Menlove
English Court of Common Pleas
January 23, 1837
3 Bing. (N.C.) 467, 132 Eng. Rep. 490. Judges on appeal:
TINDAL, C.J., PARK, GASELEE, and VAUGHAN, JJ.
Concurring opinions were delivered by Park, and Vaughan, JJ.
Gaselee, J. concurred in the result.
The FACTS as set forth by the REPORTER:
The declaration alleged, in substance, that plaintiff was the
owner of two cottages; that defendant owned land near to the
said cottages; that defendant had a rick or stack of hay near the
boundary of his land which was liable and likely to ignite, and
thereby was dangerous to the plaintiff’s cottages; that the
defendant, well knowing the premises, wrongfully and
negligently kept and continued the rick in the aforesaid
dangerous condition; that the rick did ignite, and that plaintiff’s
cottages were burned by fire communicated from the rick or
from certain buildings of defendant’s which were set on fire by
flames from the rick.
Defendant pleaded the general issue; and also several special
pleas, denying negligence.
At the trial it appeared that the rick in question had been made
by the defendant near the boundary of his own premises; that
the hay was in such a state when put together, as to give rise to
discussions on the probability of fire; that though there were
conflicting opinions on the subject, yet during a period of five
weeks the defendant was repeatedly warned of his peril; that his
stock was insured; and that upon one occasion, being advised to
take the rick down to avoid all danger, he said “ he would
chance it.” He made an aperture or chimney through the rick;
but in spite, or perhaps in consequence of this precaution, the
rick at length burst into flames from the spontaneous heating of
its materials; the flames communicated to the defendant’s barn
and stables, and thence to the plaintiff’s cottages, which were
entirely destroyed.

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Patteson, J., before whom the cause was tried, told the jury that
the question for them to consider was, whether the fire had
been occasioned by gross negligence on the part of the
defendant; adding, that he was bound to proceed with such
reasonable caution as a prudent man would have exercised
under such circumstances.
A verdict having been found for the plaintiff, a rule nisi for a
new trial was obtained, on the ground that the jury should have
been directed to consider, not whether the defendant had been
guilty of a gross negligence with reference to the standard of
ordinary prudence, a standard too uncertain to afford any
criterion, but whether he had acted bond fide to the best of his
judgment; if he had, he ought not to be responsible for the
misfortune of not possessing the highest order of intelligence.
The action under such circumstances was of the first
impression.
Talfourd, Serjt., and Whately, showed cause:
The pleas having expressly raised issues on the negligence of the
defendant, the learned judge could not do otherwise than leave
that question to the jury.~ On the same circuit a defendant was
sued a few years ago for burning weeds so near the extremity of
his own land as to set fire to and destroy his neighbors wood.
The plaintiff recovered damages, and no motion was made to
set aside the verdict. Then, there were no means of estimating
the defendant’s negligence, except by taking as a standard the
conduct of a man of ordinary prudence: that has been the rule
always laid down, and there is no other that would not be open
to much greater uncertainties.
R.V. Richards, in support of the rule:
First, there was no duty imposed on the defendant, as there is
on carriers or other bailees, under an implied contract, to be
responsible for the exercise of any given degree of prudence: the
defendant had a right to place his stack as near to the extremity
of his own land as he pleased, under that right, and subject to no
contract, he can only be called on to act bond fide to the best of
his judgment; if he has done that, it is a contradiction in terms,

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to inquire whether or not he has been guilty of gross negligence.
At all events what would have been gross negligence ought to be
estimated by the faculties of the individual, and not by those of
other men. The measure of prudence varies so with the varying
faculties of men, that it is impossible to say what is gross
negligence with reference to the standard of what is called
ordinary prudence. In Crook v. Jadis, 5 B. & Adol. 910, Patteson,
J., says, “I never could understand what is meant by parties
taking a bill under circumstances which ought to have excited
the suspicion of a prudent man; “ and Taunton, J., “I cannot
estimate the degree of care which a prudent man should take.”~
Chief Justice NICHOLAS CONYNGHAM TINDAL:
I agree that this is a case primce impressionis; but I feel no
difficulty in applying to it the principles of law as laid down in
other cases of a similar kind. Undoubtedly this is not a case of
contract, such as a bailment or the like, where the bailee is
responsible in consequence of the remuneration he is to receive:
but there is a rule of law which says you must so enjoy your own
property as not to injure that of another; and according to that
rule the defendant is liable for the consequence of his own
neglect: and though the defendant did not himself light the fire,
yet mediately he is as much the cause of it as if he had himself
put a candle to the rick; for it is well known that hay will
ferment and take fire if it be not carefully stacked. It has been
decided that if an occupier burns weeds so near the boundary of
his own land that damage ensues to the property of his
neighbor, he is liable to an action for the amount of injury done,
unless the accident were occasioned by a sudden blast which he
could not foresee. Turberville v. Stamp, 1 Salk. 13. But put the case
of a chemist making experiments with ingredients, singly
innocent, but when combined liable to ignite; if he leaves them
together, and injury is thereby occasioned to the property of his
neighbor, can any one doubt that an action on the case would
lie?
It is contended, however, that the learned judge was wrong in
leaving this to the jury as a case of gross negligence, and that the
question of negligence was so mixed up with reference to what

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would be the conduct of a man of ordinary prudence that the
jury might have thought the latter the rule by which they were to
decide; that such a rule would be too uncertain to act upon; and
that the question ought to have been whether the defendant had
acted honestly and bona fide to the best of his own judgment.
That, however, would leave so vague a line as to afford no rule
at all, the degree of judgment belonging to each individual being
infinitely various~.
Instead, therefore, of saying that the liability for negligence
should be coextensive with the judgment of each individual,
which would be as variable as the length of the foot of each
individual, we ought rather to adhere to the rule, which requires
in all cases a regard to caution such as a man of ordinary
prudence would observe. That was in substance the criterion
presented to the jury in this case, and therefore the present rule
must be discharged.

Accounting for Differences Among People
Basics
For the most part, the reasonable person standard does not make
allowances for differences among defendants. That goes with the
territory of an objective standard.
The point made is made in an expressive way by Oliver Wendell
Holmes, Jr. in The Common Law:
“[W]hen men live in society, a certain average of
conduct, a sacrifice of individual peculiarities
going beyond a certain point, is necessary to the
general welfare. If, for instance, a man is born
hasty and awkward, is always having accidents
and hurting himself or his neighbors, no doubt
his congenital defects will be allowed for in the
courts of Heaven, but his slips are no less
troublesome to his neighbors than if they
sprang from guilty neglect. His neighbors
accordingly require him, at his proper peril, to
come up to their standard, and the courts which
they establish decline to take his personal
equation into account.”

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The general rule notwithstanding, there are some circumstances
under which the reasonable person standard is adjusted to the
particular characteristics of the defendant, including for physical
limitations, childhood, and superior skills and knowledge.
Mental and Physical Capacity and Disability
In general, the courts will take the physical characteristics of the
defendant into account in applying the reasonable person standard,
but not mental or cognitive limitations or disabilities. So, for
example, if a defendant has impaired vision, impaired hearing,
amputated limbs, or does not have the ability to walk, then these
differences are tailored into the reasonable person standard. If a blind
person runs into someone, causing an injury, the question is what a
reasonable blind person would do under those circumstances. On the
other hand, adjustments are generally not made for mental or
cognitive differences. The hypothetical reasonable person is
considered sane and cognitively normal. So if a person with
Alzheimer’s dementia were to become disoriented and knock
someone over in a restaurant, the reasonable person standard would
ask whether someone without Alzheimer’s would have knocked
someone over under the same circumstances.
The rule of adjusting the standard for persons with physical
differences, but not for persons with mental/cognitive limitations,
has been sharply criticized, and some jurisdictions have retreated
from the rule in its full harshness.
Case: Breunig v. American Family Insurance Co.
Here, Wisconsin’s high court confronts the question of whether the
reasonable person standard should take into account a driver’s
sudden bout of insanity.

Breunig v. American Family Insurance Co.
Supreme Court of Wisconsin
February 3, 1970
45 Wis. 2d 536. Phillip A. Breunig, Respondent, v. American
Family Insurance Company, Appellant. No. 43.

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The FACTS in the OFFICIAL REPORTER:
This is an action by Phillip A. Breunig to recover damages for
personal injuries which he received when his truck was struck by
an automobile driven by Erma Veith and insured by the
defendant American Family Insurance Company (insurance
company). The accident happened about 7 o’clock in the
morning of January 28, 1966, on Highway 19 a mile west of Sun
Prairie, while Mrs. Veith was returning home from taking her
husband to work. Mrs. Veith’s car was proceeding west in the
eastbound lane and struck the left side of the plaintiff’s car near
its rear end while Breunig was attempting to get off the road to
his right and avoid a head-on collision.
The insurance company alleged Erma Veith was not negligent
because just prior to the collision she suddenly and without
warning was seized with a mental aberration or delusion which
rendered her unable to operate the automobile with her
conscious mind.
The jury returned a verdict finding her causally negligent on the
theory she had knowledge or forewarning of her mental
delusions or disability. The jury also found Breunig’s damages to
be $10,000. The court, on motions after verdict, reduced the
amount of damages to $7,000, approved the verdict’s finding of
negligence, and gave Breunig the option of a new trial or the
lower amount of damages. Breunig elected to accept the lower
amount and judgment was accordingly entered. The defendant
insurance company appeals.
Chief Justice E. HAROLD HALLOWS:
There is no question that Erma Veith was subject at the time of
the accident to an insane delusion which directly affected her
ability to operate her car in an ordinarily prudent manner and
caused the accident. The specific question considered by the jury
under the negligence inquiry was whether she had such
foreknowledge of her susceptibility to such a mental aberration,
delusion or hallucination as to make her negligent in driving a
car at all under such conditions.

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At the trial Erma Veith testified she could not remember all the
circumstances of the accident and this was confirmed by her
psychiatrist who testified this loss of memory was due to his
treatment of Erma Veith for her mental illness. This expert also
testified to what Erma Veith had told him but could no longer
recall. The evidence established that Mrs. Veith, while returning
home after taking her husband to work, saw a white light on the
back of a car ahead of her. She followed this light for three or
four blocks. Mrs. Veith did not remember anything else except
landing in a field, lying on the side of the road and people
talking. She recalled awaking in the hospital.
The psychiatrist testified Mrs. Veith told him she was driving on
a road when she believed that God was taking ahold of the
steering wheel and was directing her car. She saw the truck
coming and stepped on the gas in order to become airborne
because she knew she could fly because Batman does it. To her
surprise she was not airborne before striking the truck but after
the impact she was flying.
Actually, Mrs. Veith’s car continued west on Highway 19 for
about a mile. The road was straight for this distance and then
made a gradual turn to the right. At this turn her car left the
road in a straight line, negotiated a deep ditch and came to rest
in a cornfield. When a traffic officer came to the car to
investigate the accident, he found Mrs. Veith sitting behind the
wheel looking off into space. He could not get a statement of
any kind from her. She was taken to the Methodist Hospital and
later transferred to the psychiatric ward of the Madison General
Hospital.
The psychiatrist testified Erma Veith was suffering from
“schizophrenic reaction, paranoid type, acute.” He stated that
from the time Mrs. Veith commenced following the car with the
white light and ending with the stopping of her vehicle in the
cornfield, she was not able to operate the vehicle with her
conscious mind and that she had no knowledge or forewarning
that such illness or disability would likely occur.
In layman’s language, the doctor explained: “The schizophrenic
reaction is a thinking disorder of a severe type usually implying

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disorientation with the world. Usually implying a break with
reality. The paranoid type is a subdivision of the thinking
disorder in which one perceives oneself either as a very powerful
or being persecuted or being attacked by other people. And
acute implies that the rapidity of the onset of the illness, the
speed of onset is meant by acute.”
The insurance company argues Erma Veith was not negligent as
a matter of law because there is no evidence upon which the
jury could find that she had knowledge or warning or should
have reasonably foreseen that she might be subject to a mental
delusion which would suddenly cause her to lose control of the
car. Plaintiff argues there was such evidence of forewarning and
also suggests Erma Veith should be liable because insanity
should not be a defense in negligence cases.
The case was tried on the theory that some forms of insanity are
a defense to and preclude liability for negligence under the
doctrine of Theisen v. Milwaukee Automobile Mut. Ins. Co. (1962),
18 Wis. 2d 91. We agree. Not all types of insanity vitiate
responsibility for a negligent tort. The question of liability in
every case must depend upon the kind and nature of the
insanity. The effect of the mental illness or mental hallucinations
or disorder must be such as to affect the person’s ability to
understand and appreciate the duty which rests upon him to
drive his car with ordinary care, or if the insanity does not affect
such understanding and appreciation, it must affect his ability to
control his car in an ordinarily prudent manner. And in addition,
there must be an absence of notice or forewarning to the person
that he may be suddenly subject to such a type of insanity or
mental illness.
In Theisen we recognized one was not negligent if he was unable
to conform his conduct through no fault of his own but held a
sleeping driver negligent as a matter of law because one is always
given conscious warnings of drowsiness and if a person does
not heed such warnings and continues to drive his car, he is
negligent for continuing to drive under such conditions. But we
distinguished those exceptional cases of loss of consciousness
resulting from injury inflicted by an outside force, or fainting, or

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heart attack, or epileptic seizure, or other illness which suddenly
incapacitates the driver of an automobile when the occurrence
of such disability is not attended with sufficient warning or
should not have been reasonably foreseen.
Theisen followed Eleason v. Western Casualty & Surety Co. (1948),
254 Wis. 134 and Wisconsin Natural Gas Co. v. Employers Mut.
Liability Ins. Co. (1953), 263 Wis. 633. In Eleason we held the
driver, an epileptic, possessed knowledge that he was likely to
have a seizure and therefore was negligent in driving a car and
responsible for the accident occurring while he had an epileptic
seizure. In Wisconsin Natural Gas Co. v. Employers Mut. Liability
Ins. Co., supra, the sleeping driver possessed knowledge that he
was likely to fall asleep and his attempts to stay awake were not
sufficient to relieve him of negligence because it was within his
control to take effective means to stay awake or cease driving.
There are authorities which generally hold insanity is not a
defense in tort cases except for intentional torts. These cases
rest on the historical view of strict liability without regard to the
fault of the individual. Prosser, in his Law of Torts (3d ed.), p.
1028, states this view is a historical survival which originated in
the dictum in Weaver v. Ward (1616), Hob. 134, 80 English
Reports 284, when the action of trespass still rested upon strict
liability. He points out that when the modern law developed to
the point of holding the defendant liable for negligence, the
dictum was repeated in some cases.
The policy basis of holding a permanently insane person liable
for his tort is: (1) Where one of two innocent persons must
suffer a loss it should be borne by the one who occasioned it;
(2) to induce those interested in the estate of the insane person
(if he has one) to restrain and control him; and (3) the fear an
insanity defense would lead to false claims of insanity to avoid
liability. These three grounds were mentioned in the Guardianship
of Meyer (1935), 218 Wis. 381 where a farm hand who was insane
set fire to his employer’s barn. The insurance company paid the
loss and filed a claim against the estate of the insane person and
was allowed to recover.~

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We think the statement that insanity is no defense is too broad
when it is applied to a negligence case where the driver is
suddenly overcome without forewarning by a mental disability
or disorder which incapacitates him from conforming his
conduct to the standards of a reasonable man under like
circumstances. These are rare cases indeed, but their rarity is no
reason for overlooking their existence and the justification
which is the basis of the whole doctrine of liability for
negligence, i.e., that it is unjust to hold a man responsible for his
conduct which he is incapable of avoiding and which
incapability was unknown to him prior to the accident.~
We~ hold is that a sudden mental incapacity equivalent in its
effect to such physical causes as a sudden heart attack, epileptic
seizure, stroke, or fainting should be treated alike and not under
the general rule of insanity.~
By the Court. – Judgment affirmed.

Experience and Level of Skill
As the Vaughn v. Menlove case illustrates, differences in experience and
knowledge are not taken into account in favor of the person accused
of negligence. So, for instance, someone who has just learned to drive
a car will be held to the same standard as the average, experienced
driver.
On the other hand, if a person has superior skills or knowledge, then
those ratchet up the standard of care. So if a champion NASCAR
driver crashes into the plaintiff’s car, the plaintiff is free to argue that
the racecar driver should have used those race-honed superior skills
to swerve, break, or otherwise avoid the crash.
Here are some examples to help you keep straight what we have
learned so far:

Example: The Unknown Dangers of Haystacks – Go
back to the case of Vaughn v. Menlove, but suppose it evolved
in an alternative universe where the propensity of piles of
damp hay to catch fire was unknown in the community. In
such a case, Menlove would win – his actions would not have

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breached the duty of care because the reasonable person in
that community would not have known of the danger.

Example: The Leading Edge of Haystack Design –
Let’s tweak the facts of Vaughn v. Menlove once more. We are
still in our alternative universe the dangers of wet haystacks
are generally unknown. But suppose the evidence at trial
uncovered the fact that Menlove subscribed to publications
such as The Journal of Hayrick Research and also that he
frequently attended academic conferences on haystack design.
Suppose as well that pretrial discovery uncovers the fact that
through his reading and conference-going, Menlove in fact
knew that leading-edge research had determined that stacks
of wet hay will tend to catch fire. Now Menlove will lose. In
this case, however, Menlove loses not because of the
reasonable-person standard, but in spite of it. Once he has
the superior knowledge about the danger and how to avoid it,
Menlove must use it to avoid the harm, or else he is liable.
Children
An exception to the reasonable person standard is made for children.
The rule, as stated in Hardsaw v. Courtney, 665 N.E.2d 603, 606-07
(Ind. Ct. App. 1996), is:
“The standard of care expected of a child is
measured by that degree of care which would
ordinarily be exercised by a child of like age,
knowledge, judgment and experience under like
conditions and circumstances.”

Notice that the standard is not only lowered for children and
calibrated by age, but allowances are also made for differences in
knowledge, judgment, and experience. So this standard is quite unlike
the stalwart and unyielding objective standard for adults. The
standard for children leans away from a purely objective standard, so
much so that it arguably becomes quite subjective. In fact, one could
say that the reasonable person standard is not just adjusted for
children, but that it is thrown out entirely. Note that in the statement

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of doctrine from the Indiana court, there is no use of the word
“reasonable” at all.
There is an important exception to the child standard of care, and
that is when the activity that the child is engaged in is an adult
activity. This is often applied to when a child is operating a motor
vehicle, such as a car, motorboat, airplane, or snowmobile. But it has
been applied in other contexts as well, including golf. In Neumann v.
Shlansky, 58 Misc. 2d 128 (N.Y. County Ct. 1968), an 11-year-old
golfer teeing off drove a ball into the plaintiff’s knee. The court
wrote:
“As applied to the instant case, one of the
critical elements in the opinion of the court is
the risk involved when a dangerous missile is hit
by a golfer. Just as a motor vehicle or other
power-driven vehicle is dangerous, so is a golf
ball hit with a club. Driving a car, an airplane or
powerboat has been referred to as adult activity
even though actively engaged in by infants.
Likewise, golf can easily be determined to be an
adult activity engaged in by infants. Both
involve dangerous instruments. No matter what
the age of a driver of a car or a driver of a golf
ball, if he fails to exercise due care serious injury
may result.”

In many of these cases, the courts have rejected the argument that
because children frequently engage in the activity, it should not be
considered an adult activity. These courts tend to look at the level of
danger associated with the activity, rather than its adultness.
Other courts take a different view, however, and will allow a lowering
of the standard of care for children even when the activity is
inherently dangerous, so long as it is often engaged in by children. In
Purtle v. Shelton, 474 SW 2d 123 (Ark. 1971), the adult standard was
held not to be applicable to a 17-year-old engaged in deer hunting.
The defendant, in a deer stand, shot at what he thought was a deer.
In fact, the defendant shot in the vicinity of his 16-year-old friend.
The bullet broke into shrapnel, hitting the friend in both eyes. The
court said:

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“We are unable to find any authority holding
that a minor should be held to an adult standard
of care merely because he engages in a
dangerous activity. There is always the parallel
requirement that the activity be one that is
normally engaged in only by adults.~ We have
no doubt that deer hunting is a dangerous sport.
We cannot say, however, either on the basis of
the record before us or on the basis of common
knowledge, that deer hunting is an activity
normally engaged in by adults only. To the
contrary, all the indications are the other way.~
We know, from common knowledge, that
youngsters only six or eight years old frequently
use .22 caliber rifles and other lethal firearms to
hunt rabbits, birds, and other small game. We
cannot conscientiously declare, without proof
and on the basis of mere judicial notice, that
only adults normally go deer hunting.”

Gender
Traditionally, the objective standard for negligence was known as the
“reasonable man” standard. Courts and commentators have now
shifted to speaking of the “reasonable person.” But the question
remains as to whether the standard – by whatever name it is called –
retains a male bias. Professor Leslie Bender of Syracuse University
puts it this way in A Lawyer’s Primer on Feminist Theory and Tort, 38
J. LEGAL EDUC. 3 (1988):
“Does converting a “reasonable man” to a
“reasonable person” in an attempt to eradicate
the term’s sexism actually exorcise the sexism or
instead embed it?~ This “resolution” of the
standard’s sexism ignores several important
feminist insights. The original phrase
“reasonable man” failed in its claim to represent
an abstract, universal person. Even if such a
creature could be imagined, the “reasonable
man” standard was postulated by men, who,
because they were the only people who wrote
and argued the law, philosophy, and politics at

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that time, only theorized about themselves.
When the standard was written into judicial
opinions, treaties, and casebooks, it was written
about and by men. The case law and treatises
explaining the standard are full of examples
explaining how the “reasonable man” is the
“man on the Clapham Omnibus” or “the man
who takes the magazines at home and in the
evening pushes the lawn mower in his shirt
sleeves.” When the authors of such works said
“reasonable man,” they meant “male,” “man” in
a gendered sense.”

Professor Bender suggests the possibility of a different and higher
standard of care – a “reasonable neighbor” standard, in which people
are expected to treat one another at least as well as we would social
acquaintances. She also asks what would happen if we understood
“standard of care” to mean “standard of caring.” In her view, “the
feminine voice can design a tort system that encourages behavior that
is caring about others’ safety and responsive to others’ needs or
hurts, and that attends to human contexts and consequences.”
Some Questions to Ponder About the Reasonable
Person Standard
A. Why should the reasonable person standard be deferential to child
defendants of lesser ability, but unyielding for elderly defendants? Is
there a sensible rationale that can be articulated? Is some emotional
response at work? Is this pernicious discrimination?
B. Why should physical limitations be usable in the defendant’s favor
to decrease the standard of care, but not mental limitations? Should it
matter that science can increasingly identify physical causes of mental
limitations, such as brain chemistry, genetics, or brain tissue that is
degenerated or damaged?
C. How do you think negligence law might have developed
differently over the past centuries if women served on the bench in
numbers equal to men?

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D. Could you do away altogether with the mental construct of a
hypothetical person as setting the standard of care? What might you
use instead?

Negligence Per Se
Basics
Usually the standard of care is a matter for the parties to argue about
through the mental construct of the fictional reasonable person. But
the plaintiff can argue to the court that the case should instead be
submitted to the jury with a specific standard of care that is borrowed
from a statute or regulation. The doctrine governing this is called
negligence per se.

Example: Flatbed with Rebar – Suppose a statute says that
(1) that a driver who has a cargo load protruding beyond the
rear bumper of a vehicle must attach a red flag to the
protrusion to warn drivers behind the vehicle, and (2)
regardless of the flag, the load must not protrude more than
four feet. The defendant, driving a 10-foot flatbed truck, is
carrying a load of 16-foot-long rebar, such that the load
protrudes six feet beyond the rear bumper. The defendant
does not attach any flag. The plaintiff is driving behind the
defendant when the defendant stops suddenly. The plaintiff’s
vehicle collides with the defendant’s truck. As the plaintiff’s
car crumples into the truck’s bumper assembly, the
protruding rebar pierces the windshield and injures the
plaintiff. The plaintiff would likely be able to use the statute
to set the standard of care, obviating the need for argument
about whether the defendant’s actions were reasonable.
Negligence per se doctrine can be very helpful to plaintiffs because it
can function as a free pass on the element of breach of the duty of
care. If the evidence shows that the defendant failed to comply with
the statute or regulation, and if the negligence per se doctrine applies,
then there will be no need to make an elaborate argument to the jury
about the conduct being unreasonable.

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“Per se” is Latin meaning “by itself” or “in itself.” But translating this
phrase does not help much. There are many situations irrelevant to
negligence per se in which you could describe something as being
“negligence, in itself.” The phrase “negligence per se” is a term of art:
It refers specifically to the use of a statute or regulation to set the
standard of care in a negligence case.
What Makes a Statute or Regulation Amenable
Not every statute or regulation can be used by a plaintiff as a
replacement for the generic reasonable-person standard of care. The
analysis for whether a statute or regulation can be used as a per-se
standard can be summed up as the class-of-risk/class-of-persons
test. Two questions must be asked:


Does the injury or accident being sued on represent the kind
of risk that the statute or regulation was designed to address?



Is the plaintiff within the class of persons that the statute or
regulation was designed to protect?

If the answers to both questions are yes, then the statute or
regulation can be used. This test helps to filter out some cases where
the negligence-per-se doctrine would lead to some unfair or bizarre
results.

Example: Young Smoker – Suppose a statute prohibits
persons under the age of 18 from using tobacco. The
defendant, a 17-year-old, is smoking a cigarette in bed when
he falls asleep. The smoldering cigarette starts a fire, which
burns down a neighbor’s apartment. To determine whether
the tobacco-age-limit statute can be used to set the standard
of care, first ask the class-of-risks question: Was the statute
meant to protect against risks of structure fires? The answer
would seem to be no. The statute was meant to protect young
persons from the health hazards associated with inhaling
tobacco smoke or placing tobacco in contact with the
epithelial tissues of the mouth. It was not about preventing
fires. So negligence per se will not apply here.

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Example: Young-looking Smoker – Suppose a statute
requires sellers of tobacco products to require any person
appearing to be under the age of 35 to produce a state-issued
identification card or driver’s license to prove that she or he is
18 years of age or older. The plaintiff is and appears to be in
his early 20s. The plaintiff gets cancer caused by the use of
tobacco products and sues the store that sold the products.
The plaintiff produces evidence that he has never had a stateissued identification card or driver’s license, and thus would
not have been able to produce the required identification at
the sales counter. Can the statute be used to set the standard
of care? The class-of-risks part of the test would seem to be
satisfied. The risks intended to be addressed by the statute are
the health risks of using tobacco. But a problem is revealed
with the class-of-persons part of the test. We ask: Is the
plaintiff within the class of persons meant to be protected by
the statute? The answer would seem to be no. The statute
appears to be aimed at protecting persons under the age of 18
– not adults without ID. So the statute could not be used to
set the standard of care in this lawsuit.
It is important to understand what the class-of-risk/class-of-persons
test does not require: It does not require that the statute or regulation
was enacted with the intent that it be used in negligence lawsuits. It is
almost always the case that such statutes and regulations were
enacted with no thought about whether or not they could be used in
torts lawsuits. Usually, such statutes are for the purpose of allowing
criminal prosecutions or some form of administrative enforcement
(such as by government regulatory agencies who conduct inspections,
assess fines, revoke licenses, etc.). It may be that the enacting body
never dreamed that the provisions it promulgated would be used in
private tort lawsuits. Generally speaking, that lack of legislative or
regulatory intent is irrelevant. Whether or not the statute or
regulation can be commandeered under negligence-per-se doctrine
depends instead on the class-of-risks/class-of-persons test.

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Case: Gorris v. Scott
The following is a seminal case on negligence per se, applying the
class-of-risk/class-of-persons test in classical fashion.

Gorris v. Scott
Court of Exchequer
April 22, 1874
L.R. 9 Ex. 125. Gorris and Another v. Scott. Kelly, C.B., Pigott,
Pollock, and Amphlett, BB.
Chief Baron FITZROY KELLY:
This is an action to recover damages for the loss of a number of
sheep which the defendant, a shipowner, had contracted to
carry, and which were washed overboard and lost by reason (as
we must take it to be truly alleged) of the neglect to comply with
a certain order made by the Privy Council, in pursuance of the
Contagious Diseases (Animale) Act, 1869. The Act was passed
merely for sanitary purposes, in order to prevent animals in a
state of infectious disease from communicating it to other
animals with which they might come in contact. Under the
authority of that Act, certain orders were made; amongst others,
an order by which any ship bringing sheep or cattle from any
foreign port to ports in Great Britain is to have the place
occupied by such animals divided into pens of certain
dimensions, and the floor of such pens furnished with battens
or foot holds. The object of this order is to prevent animals
from being overcrowded, and so brought into a condition in
which the disease guarded against would be likely to be
developed. This regulation has been neglected, and the question
is, whether the loss, which we must assume to have been caused
by that neglect, entitles the plaintiffs to maintain an action.
The argument of the defendant is, that the Act has imposed
penalties to secure the observance of its provisions, and that,
according to the general rule, the remedy prescribed by the
statute must be pursued; that although, when penalties are
imposed for the violation of a statutory duty, a person aggrieved
by its violation may sometimes maintain an action for the

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damage so caused, that must be in cases where the object of the
statute is to confer a benefit on individuals, and to protect them
against the evil consequences which the statute was designed to
prevent, and which have in fact ensued; but that if the object is
not to protect individuals against the consequences which have
in fact ensued, it is otherwise; that if, therefore, by reason of the
precautions in question not having been taken, the plaintiffs had
sustained that damage against which it was intended to secure
them, an action would lie, but that when the damage is of such a
nature as was not contemplated at all by the statute, and as to
which it was not intended to confer any benefit on the plaintiffs,
they cannot maintain an action founded on the neglect. The
principle may be well illustrated by the case put in argument of a
breach by a railway company of its duty to erect a gate on a level
crossing, and to keep the gate closed except when the crossing is
being actually and properly used. The object of the precaution is
to prevent injury from being sustained through animals or
vehicles being upon the line at unseasonable times; and if by
reason of such a breach of duty, either in not erecting the gate,
or in not keeping it closed, a person attempts to cross with a
carriage at an improper time, and injury ensues to a passenger,
no doubt an action would lie against the railway company,
because the intention of the legislature was that, by the erection
of the gates and by their being kept closed individuals should be
protected against accidents of this description. And if we could
see that it was the object, or among the objects of this Act, that
the owners of sheep and cattle coming from a foreign port
should be protected by the means described against the danger
of their property being washed overboard, or lost by the perils
of the sea, the present action would be within the principle.
But, looking at the Act, it is perfectly clear that its provisions
were all enacted with a totally different view; there was no
purpose, direct or indirect, to protect against such damage; but,
as is recited in the preamble, the Act is directed against the
possibility of sheep or cattle being exposed to disease on their
way to this country. The preamble recites that “it is expedient to
confer on Her Majesty’s most honourable Privy Council power
to take such measures as may appear from time to time

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necessary to prevent the introduction into Great Britain of
contagious or infectious diseases among cattle, sheep, or other
animals, by prohibiting or regulating the importation of foreign
animals,” and also to provide against the “spreading” of such
diseases in Great Britain. Then follow numerous sections
directed entirely to this object. Then comes s. 75, which enacts
that “the Privy Council may from time to time make such orders
as they think expedient for all or any of the following purposes.”
What, then, are these purposes? They are “for securing for
animals brought by sea to ports in Great Britain a proper supply
of food and water during the passage and on landing,” “for
protecting such animals from unnecessary suffering during the
passage and on landing,” and so forth; all the purposes
enumerated being calculated and directed to the prevention of
disease, and none of them having any relation whatever to the
danger of loss by the perils of the sea. That being so, if by
reason of the default in question the plaintiffs’ sheep had been
overcrowded, or had been caused unnecessary suffering, and so
had arrived in this country in a state of disease, I do not say that
they might not have maintained this action. But the damage
complained of here is something totally apart from the object of
the Act of Parliament, and it is in accordance with all the
authorities to say that the action is not maintainable.
Baron PIGOTT:
For the reasons which have been so exhaustively stated by the
Lord Chief Baron, I am of opinion that the declaration shews
no cause of action. It is necessary to see what was the object of
the legislature in this enactment, and it is set forth clearly in the
preamble as being “to prevent the introduction into Great
Britain of contagious or infectious diseases among cattle, sheep,
or other animals,” and the “spread of such diseases in Great
Britain.” The purposes enumerated in s. 75 are in harmony with
this preamble, and it is in furtherance of that section that the
order in question was made. The object, then, of the regulations
which have been broken was, not to prevent cattle from being
washed overboard, but to protect them against contagious
disease.~

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Baron CHARLES EDWARD POLLOCK:
I also think this demurrer must be allowed.~ [T]he Act of
Parliament was passed alio intuitu; the recital in the preamble
and the words of s. 75 point out that what the Privy Council
have power to do is to make such orders as may be expedient
for the purpose of preventing the introduction and the spread of
contagious and infectious diseases amongst animals. Suppose,
then, that the precautions directed are useful and advantageous
for preventing animals from being washed overboard[.] [Y]et
they were never intended for that purpose, and a loss of that
kind caused by their neglect cannot give a cause of action.
Baron RICHARD AMPHLETT:
I am of the same opinion.

Negligence Per Se and Contributory/Comparative
Negligence
When the plaintiff’s own negligence contributes the injury that the
plaintiff is suing over, the defendant can use that fact to establish an
affirmative defense – called contributory negligence or comparative
negligence, depending on the jurisdiction. This is discussed in more
detail in a later chapter. For now, note only that negligence per se can
be used by plaintiffs in a prima facie case and by defendants to
establish contributory/comparative negligence.
Consider the example of the rear-end collision with the truck loaded
with rebar. Suppose the plaintiff’s car was following the defendant’s
truck on the freeway at 80 miles per hour. Suppose also that the
posted speed limit on this stretch of freeway is 65 miles per hour. If
the plaintiff’s speed was partly at fault for the plaintiff’s injuries, then
the defendant can use the violation of the statute to establish the
plaintiff’s negligence for a contributory or comparative negligence
defense.
Negligence Per Se and Causation
When negligence per se is being used, it is important to keep in mind
that for the prima facie case to work as a whole, the violation of the
statute must have caused the injury the plaintiff is suing over. Again,

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let’s go back to the example of the flatbed loaded with rebar. Suppose
evidence at trial shows that before the accident, the plaintiff had seen
the truck from the side, and had mentally noted how far the rebar
extended beyond the bumper. If that is the case, then violation of the
portion of the statute that requires a red flag does not help the
plaintiff’s case, because it is clear that the red flag would not have
made a difference in preventing the accident. The only thing the red
flag could have done was make the plaintiff aware of the
protuberance – but the plaintiff was already aware, so the violation of
the statute cannot be viewed as a cause of the accident.
It should be noted that the necessity of this causal link between
breach and injury applies in all negligence cases – whether the
reasonable person standard of care is used or the doctrine of
negligence per se. But for some reason the causation analysis is more
intuitive when the reasonable person standard is used than with
negligence per se, where it seems to present a habitual pitfall.
Case: Martin v. Herzog
The following case is from the New York Court of Appeals, which,
despite the name, is actually the highest state court – equivalent to
the “supreme” court in most jurisdictions. This case is written by the
most famous New York Court of Appeals judge of all time: Benjamin
N. Cardozo.

Martin v. Herzog
Court of Appeals of New York
February 24, 1920
Elizabeth Martin, as Administratrix of the Estate of William J.
Martin, Deceased, Appellant, v. Samuel A. Herzog, Respondent,
Impleaded with Another. Judges: Cardozo, J. Hiscock, Ch. J.,
Pound, McLaughlin, Andrews and Elkus, JJ., concur with
Cardozo, J.; Hogan, J., reads dissenting opinion.
Judge BENJAMIN N. CARDOZO:
The action is one to recover damages for injuries resulting in
death.

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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 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, sec. 286, subd. 3; sec. 332; Consol. Laws, ch. 25).
Negligence is charged against the plaintiff’s intestate, the driver
of the wagon, in that he was traveling without lights (Highway
Law, sec. 329a, as amended by L. 1915, ch. 367). There is no
evidence that the defendant was moving at an excessive speed.
There is none of any defect in the equipment of his car. The
beam 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. The case was tried on the
assumption that the hour had arrived when lights were due. It
was argued on the same assumption in this court. In such
circumstances, it is not important whether the hour might have
been made a question for the jury. A controversy put out of the
case by the parties is not to be put into it by us. We say this by
way of preface to our review of the contested rulings. 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

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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 evidence 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.
We think the unexcused omission of the statutory signals is
more than some evidence of negligence. It is negligence in itself.
Lights are intended for the guidance and protection of other
travelers on the highway (Highway Law, sec. 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. Whether the omission of an absolute duty, not
willfully or heedlessly, but through unavoidable accident, is also
to be characterized as negligence, is a question of nomenclature
into which we need not enter, for it does not touch the case
before us. There may be times, when if jural niceties are to be
preserved, the two wrongs, negligence and breach of statutory
duty, must be kept distinct in speech and thought. In the
conditions here present they come together and coalesce. 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. Some relaxation there has also been
where the safeguard is prescribed by local ordinance, and not by
statute. Courts have been reluctant to hold that the police
regulations of boards and councils and other subordinate
officials create rights of action beyond the specific penalties
imposed. This has led them to say that the violation of a statute
is negligence, and the violation of a like ordinance is only
evidence of negligence. An ordinance, however, like a statute, is
a law within its sphere of operation, and so the distinction has
not escaped criticism. Whether it has become too deeply rooted
to be abandoned, even if it be thought illogical, is a question not

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now before us. What concerns us at this time is that even in the
ordinance cases, the omission of a safeguard prescribed by
statute is put upon a different plane, and is held not merely
some evidence of negligence, but negligence in itself. 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 been 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 have no dispensing power by which they may relax the
duty that one traveler on the highway owes 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 been 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. 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

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superfluous. If that is so, it is for the offender to go forward
with the evidence, 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 seen 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 leave 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 been informed what
effect they were free to give, in that event, to the violation of the
statute. They should have been told not only that the omission
of the lights was negligence, but that it was “prima facie evidence
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. Here,
on the undisputed facts, lack of vision, whether excusable or
not, was the cause of the disaster. The defendant may have been
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 been futile. Nothing of the
kind is shown. The collision was due to his failure to see at a
time when sight should have been aroused and guided by the
statutory warnings. Some explanation 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
equivalents, 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 decedent’s fault. Errors may
not be ignored as unsubstantial when they tend to such an
outcome. A statute designed for the protection of human life is

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not to be brushed aside as a form of words, its commands
reduced to the level 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.
Judge JOHN W. HOGAN, dissenting:
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 21½ feet at the narrowest
point a short distance easterly of the place of the collision
hereinafter mentioned, to a width of 27½ feet at the point
where the collision occurred.
On the evening of August 21st, 1915, the plaintiff, together with
her husband, now deceased, were seated in an open wagon
drawn by a horse. They were traveling on the highway westerly
towards Tarrytown. The defendant was traveling 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.
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) must stand, therefore,
if at all, upon the divergence of his course from the center of the
highway.” The evidence on behalf of plaintiff tended to

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establish that on the evening in question her husband was
driving the horse at a jogging gait along on their 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 her side of
the road; that the automobile ran into the wagon in which
plaintiff and her husband were seated at a point on their side of
the road while they were riding along near 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 passed 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 been 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 been 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 travelling about 12
miles an hour. … At the time of the collision I
was driving on the right of the road.”
The manner in which and the point in the highway where the
accident occurred presented a question of fact for a jury. ~ The
trial justice charged the jury:~
“It is for you to determine whether the
defendant was driving on the wrong side of the

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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 extent 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 evidence 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 seen
the buggy and yet collided with it then you may
say, if you so find, that the defendant was
careless and negligent.~ If [you] find that Mr.
Martin was guilty of any negligence, no matter
how slight, which contributed to the accident,
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 evidence in the record is ample
to sustain a contrary conclusion. As to the statement that the car
was rounding “a curve,” two maps made by engineers from
actual measurements and surveys for defendant were put in
evidence 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,”

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evidence was adduced by plaintiff tending to show that the
searchlights on defendant’s car lighted up the entire roadway to
the extent that the vehicle in which plaintiff and her husband
were riding was visible, that the evening was not dark, though it
appeared as though a rainfall might be expected. Some witnesses
testified it was moonlight. The doctor called from Tarrytown
who arrived within twenty 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 27½ 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
when 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 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 seated there she could see the body of Mr. Martin. While
she testified the evening 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 crossexamination was confronted with his testimony given before the
coroner where he testified that the road was “fairly light.”
The facts narrated were passed upon by the jury under a proper
charge relating to the same, and were sustained 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 seated upon the extreme right
side of the road. (C) The highway was well lighted. The evening

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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: “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 seen it anyway. Further the opinion states:
“Here, on the undisputed facts, lack of vision,
whether excusable or not, was the cause of the
disaster. The defendant may have been
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 rate of speed
that warning would of necessity be futile.
Nothing of the kind is shown.”
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 stopped in five or six feet and though
he put on the foot brake he ran 20 feet before he stopped. The
jury had the right to find that a car traveling at the rate of 12
miles an hour which could be stopped within five or six feet,
and with the foot brake on was not halted within 100 feet must
at the time of the collision have been 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

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exercise 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, discussed 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 been
driving recklessly 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 exercise 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 exercise 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 vehicle is prima facie evidence of
contributory negligence on the part of plaintiff.” The justice
declined to charge in the language stated, but did charge that the
jury might consider it on the question of negligence, but it was

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not in itself conclusive evidence of negligence. For the refusal to
instruct the jury as requested, the judgment of the Trial Term
was reversed by the Appellate Division.
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 request
to charge excluded 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 subject 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 evidence adduced upon the trial and the
credence attached to the same, the fact has been determined that
the accident would have been 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 been 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

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accident happened as claimed by the plaintiff and her witnesses
and we cannot surmise or infer that the accident would not have
happened had a light been located on the wagon.
In my opinion the charge of the trial justice upon the subject of
proximate cause of the accident was a full and complete
statement of the law of the case, especially when considered in
connection with the charge that the slightest negligence on the
part of the intestate contributing to the accident would require a
verdict for defendant.~
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.

Excuse for Complying with a Statute or Regulation
The courts will sometimes excuse failure to comply with a statute or
regulation. Recognized excuses can include situations in which
complying with the statute or regulation would be more dangerous
than violating it, inability to comply with the statute or regulation
despite an honest attempt to do so, and emergency circumstances –
so long as the emergency itself was not the defendant’s own fault.

Example: Southbound Swerver – Suppose a statute
requires motorists to not travel on the wrong side of the road.
A motorist is traveling southbound on a road when a group
of children suddenly dart out into traffic. To avoid hitting
them, the motorist swerves across the double yellow line and
sideswipes a northbound vehicle. The southbound motorist is
excused from complying with the statute, and thus negligence
per se doctrine cannot be used to establish breach of the duty
of care.
Keep in mind that even where a person is excused from complying
with a statute, there is still the duty of reasonable care. So the

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southbound swerver must still exercise care reasonable under the
circumstances when crossing the double-yellow line.
Complying with Statutes or Regulations as a Defense
Since violating a statute or regulation can count as a breach of the
duty of care under negligence-per-se doctrine, the question naturally
arises whether complying with a relevant statute or regulation will
suffice to show that the relevant standard of care was met. In other
words, since statutes can be used by plaintiffs to establish breach, can
compliance with statutes be used by defendants to show a lack of
breach?
The general rule is that defendants can introduce compliance with a
statute or regulation to the jury as evidence that the relevant standard
of care was met. However, compliance with a statute or regulation is
not dispositive. A plaintiff is free to argue that the reasonable person
standard of care required doing more than the statute or regulation
itself required.

Example: Retail Railing – Suppose a statute requires that
railings in retail stores be of a certain height. The defendant’s
railing meets the standard. Nonetheless, the plaintiff falls over
the railing, with the theory of negligence being that the railing
was not high enough to reasonably prevent falls. Can the
defendant use compliance with the statute to defeat the
negligence claim? Not necessarily. The defendant can present
the statute to the jury and argue that the fact that the railing
was as a high as required by statute indicates that reasonable
care was taken. But the plaintiff can argue that the railing
height was not reasonable regardless. Suppose evidence at
trial showed that several similar accidents had happened at
the store in the past. One can imagine that the jury would be
persuaded to find the railing height unreasonably low despite
the fact that it was as high as the statute required.
So, for defendants, compliance with a statute or regulation forms an
incomplete argument. For plaintiffs, however, violation of a statute
or regulation, if it passes the negligence-per-se requirements,

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functions to end all argument and tally up a win for the plaintiff on
the breach element of the negligence case.
Some Problems on Negligence Per Se
A. Westbound Walker – A statute requires pedestrians walking
along a roadway to walk such that they are facing traffic. William is
driving along a rural road when his car breaks down. There being no
cell phone service in this area, William will have to walk into town to
get help. The nearest town to the east is 100 miles away. The nearest
town to the west is three miles away. In the westbound direction, the
right side of the road has a wide shoulder, while the left side of the
road – which faces traffic –has a narrow shoulder and drops off to
the left over a cliff. William decides to walk westbound on the right
side of the road with his back to traffic. Another motorist, Minsky, is
travelling westbound along the road and hits William. Can Minsky
prevail in a negligence suit against William for the damage to
Minsky’s car? If William sues Minsky for bodily injuries he sustained
in being hit by Minsky’s car, can Minsky successfully repel the suit by
arguing that the man was contributorily negligent? (Assume that we
are in a contributory negligence jurisdiction, where any negligence on
the part of the plaintiff that contributed to the injury forms a
complete defense.)
B. SparkleStar Skate – The following hypothetical uses a real statute
and real language from a roller-rink sign.
Suppose there is a roller rink in North Carolina named SparkleStar
Skate that hosts an open skate session on an unlucky afternoon.
A North Carolina statute provides as follows:
N.C. General Statutes § 99E-12. Duties of a roller skater.
Each roller skater shall, to the extent commensurate with the
person’s age:
(1)
Maintain reasonable control of his or her speed and
course at all times.
(2)
Heed all posted signs and warnings.
(3)
Maintain a proper lookout to avoid other roller
skaters and objects.

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(4)

Accept the responsibility for knowing the range of his
or her ability to negotiate the intended direction of
travel while on roller skates and to skate within the
limits of that ability.
(5)
Refrain from acting in a manner that may cause or
contribute to the injury of himself, herself, or any
other person.
A sign inside SparkleStar Skate contains the following language:
DRESS AND CONDUCT CODE
Skaters shall conduct themselves as
ladies and gentlemen.
No in and out privileges, loitering, or
littering around building. “When you leave
– you leave.”
All skaters renting skates shall be
required to wear socks. If you feel that
your rental skates are defective or
improperly adjusted, please return them to
the rental skate counter immediately.
No foul language is permitted.
Parent spectators only.
Skate At Your Own Risk.

Six-year-old Jeanette, a novice roller skater, is using rental skates. She
is not wearing socks. Jeanette skates around the skate floor, gradually
going faster as her confidence builds. Still skating slower than most
other skaters, Jeanette becomes flummoxed when closely passed by
several tweens who are skating fast and laughing loudly. Jeanette
starts to careen out of control. Though she tries to regain her
balance, she tumbles into the path of Kevin, a 39-year-old father
skating with his young son. Kevin falls and breaks his arm. Kevin,
who is unemployed and without health insurance, asks Jeanette’s
parents – both of whom are partners in a national accounting firm –
for help with his subsequent medical bills. They refuse.
Four-year-old Lawrence, who has been skating since the age of 17
months, is whiz on the floor. Zooming in and out of much older

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skaters, he elicits ooohs and aaahs from everyone who sees him.
While smiling and waving at onlookers, Lawrence runs into Molly, a
13-year-old novice who is struggling to stay up right. The collision
causes Molly to lose her balance and fall, causing her to break several
teeth. Molly will need thousands of dollars’ worth of dentistry, and
Lawrence has money coming in from a national television
commercial he landed thanks to his skating prowess.
Nilou, a 72-year-old skater at SparkleStar Skate with her great
grandson, is an experienced and competent roller skater. She rents
skates. As she tries them out, her left skate feels as if it has a wobbly
wheel. But Nilou ignores it, as her great-grandson is already skating
off ahead. After a few minutes of skating, Nilou’s left skate suddenly
collapses, causing Nilou to fall and suffer a broken femur. It turns
out there was indeed a wobbly wheel on the left skate owing to
improper maintenance by SparkleStar Skate’s tech, who was at the
time unlawfully intoxicated with marijuana.
A. Can Kevin use N.C.G.L. §99E-12 to successfully sue Jeanette for
negligence?
B. Can Molly use N.C.G.L. §99E-12 to successfully sue Lawrence for
negligence?
C. Can Nilou successfully make out a prima facie case for negligence
against SparkleStar Skate, using N.C.G.L. §99E-12?
D. Can SparkleStar Skate use N.C.G.L. §99E-12 to establish an
affirmative defense of contributory negligence if sued by Nilou?
(North Carolina is a contributory negligence jurisdiction, so if Nilou’s
negligence contributed to her injury at all, then she will be barred
from recovering any damages.)
E. Can SparkleStar Skate use N.C.G.L. §99E-12 to sue Nilou for
negligence for damage to the left skate?

The Role of Custom or Standard Practices
Golfers yell “Fore!” before teeing off. Lumberjacks yell, “Timber!”
Waiters serving fajitas say, “The plate is very hot.” Adults insist that
little kids hold hands in a parking lot. What is the relevance of such

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habitual ways of doing things on the standard of care in a negligence
case?
Judges and people writing on torts call such conduct “custom.”
(Although in the business world, “standard practice” may be the
more common term.) The rule with regard to custom is that it can be
relevant evidence for the jury on the standard of care, but custom is
not dispositive to the issue. In fact, no matter how firmly established
custom is, custom itself is not the standard of care. The standard is
what it always is: what the reasonable person would do under the
circumstances.
Custom can be relevant and helpful to the jury in many ways.
Showing that a practice is customary tends to show that it is a
practicable and well-known means of reducing risk. An established
custom can also be reflective of the amalgamated judgment of a large
community. These showings can go a long way in making an
argument about what the reasonable person would have done.
An important exception to the rule that custom is not dispositive is
professional-malpractice negligence – that is negligence in the
practice of medicine, dentistry, law, etc. In the professionalmalpractice context, the prevailing custom in the professional
community is dispositive. That is, the custom actually sets the
standard of care, replacing reasonable-person analysis. Professional
malpractice is discussed in a later chapter on healthcare liability. Just
remember that outside the context of negligence committed by a
professional in the course of professional practice, custom cannot
usurp the reasonable-person standard of care.
Case: The T.J. Hooper
The following case is the classic exposition on the use of custom in
tort law. Ironically, the case does not technically concern torts, but
rather admiralty law, the common law of obligations arising at sea.
Admiralty law covers a lot of topics – such as sunken treasure – that
are not covered by tort. But when it comes to liability for accidents at
sea, admiralty law and torts are largely consonant.

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The T.J. Hooper
United States Court of Appeals for the Second Circuit
July 21, 1932
60 F.2d 737. The T. J. Hooper.; The Northern No. 30 and No.
17.; The Montrose. In re Eastern Transp. Co., New England
Coal & Coke Co. v. Northern Barge Corporation, H. N.
Hartwell & Son, Inc., v. Same. No. 430. Petition by the Eastern
Transportation Company, as owner of the tugs Montrose and T.J.
Hooper. Before LEARNED HAND, SWAN, and AUGUSTUS
N. HAND, Circuit Judges.
Judge LEARNED HAND:
The barges No. 17 and No. 30, belonging to the Northern Barge
Company, had lifted cargoes of coal at Norfolk, Virginia, for
New York in March, 1928. They were towed by two tugs of the
petitioner, the Montrose and the Hooper, and were lost off the
Jersey Coast on March tenth, in an easterly gale. The cargo
owners sued the barges under the contracts of carriage; the
owner of the barges sued the tugs under the towing contract,
both for its own loss and as bailee of the cargoes; the owner of
the tug filed a petition to limit its liability. All the suits were
joined and heard together, and the judge found that all the
vessels were unseaworthy; the tugs, because they did not carry
radio receiving sets by which they could have seasonably got
warnings of a change in the weather which should have caused
them to seek shelter in the Delaware Breakwater en route. He
therefore entered an interlocutory decree holding each tug and
barge jointly liable to each cargo owner, and each tug for half
damages for the loss of its barge. The petitioner appealed, and
the barge owner appealed and filed assignments of error.
Each tug had three ocean going coal barges in tow, the lost
barge being at the end. The Montrose, which had the No. 17,
took an outside course; the Hooper with the No. 30, inside. The
weather was fair without ominous symptoms, as the tows passed
the Delaware Breakwater about midnight of March eighth, and
the barges did not get into serious trouble until they were about
opposite Atlantic City some sixty or seventy miles to the north.

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The wind began to freshen in the morning of the ninth and rose
to a gale before noon; by afternoon the second barge of the
Hooper’s tow was out of hand and signalled the tug, which found
that not only this barge needed help, but that the No. 30 was
aleak. Both barges anchored and the crew of the No. 30 rode
out the storm until the afternoon of the tenth, when she sank,
her crew having been meanwhile taken off. The No. 17 sprang a
leak about the same time; she too anchored at the Montrose’s
command and sank on the next morning after her crew also had
been rescued. The cargoes and the tugs maintain that the barges
were not fit for their service; the cargoes and the barges that the
tugs should have gone into the Delaware Breakwater, and
besides, did not handle their tows properly.
The evidence of the condition of the barges was very extensive,
the greater part being taken out of court. As to each, the fact
remains that she foundered in weather that she was bound to
withstand. A March gale is not unusual north of Hatteras; barges
along the coast must be ready to meet one, and there is in the
case at bar no adequate explanation for the result except that
these were not well-found. The test of seaworthiness, being
ability for the service undertaken, the case might perhaps be left
with no more than this. As to the cargoes, the charters excused
the barges if ‘reasonable means’ were taken to make them
seaworthy; and the barge owners amended their answers during
the trial to allege that they had used due diligence in that regard.
As will appear, the barges were certainly not seaworthy in fact,
and we do not think that the record shows affirmatively the
exercise of due diligence to examine them. The examinations at
least of the pumps were perfunctory; had they been sufficient
the loss would not have occurred.~
A more difficult issue is as to the tugs. We agree with the judge
that once conceding the propriety of passing the Breakwater on
the night of the eighth, the navigation was good enough. It
might have been worse to go back when the storm broke than
to keep on. The seas were from the east and southeast, breaking
on the starboard quarter of the barges, which if tight and well
found should have lived. True they were at the tail and this is
the most trying position, but to face the seas in an attempt to

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return was a doubtful choice; the masters’ decision is final unless
they made a plain error. The evidence does not justify that
conclusion; and so, the case as to them turns upon whether they
should have put in at the Breakwater.
The weather bureau at Arlington broadcasts two predictions
daily, at ten in the morning and ten in the evening. Apparently
there are other reports floating about, which come at uncertain
hours but which can also be picked up. The Arlington report of
the morning read as follows: ‘Moderate north, shifting to east
and southeast winds, increasing Friday, fair weather to-night.’
The substance of this, apparently from another source, reached
a tow bound north to New York about noon, and, coupled with
a falling glass, decided the master to put in to the Delaware
Breakwater in the afternoon. The glass had not indeed fallen
much and perhaps the tug was over cautious; nevertheless,
although the appearances were all fair, he thought discretion the
better part of valor. Three other tows followed him, the masters
of two of which testified. Their decision was in part determined
by example; but they too had received the Arlington report or its
equivalent, and though it is doubtful whether alone it would
have turned the scale, it is plain that it left them in an indecision
which needed little to be resolved on the side of prudence; they
preferred to take no chances, and chances they believed there
were. Courts have not often such evidence of the opinion of
impartial experts, formed in the very circumstances and
confirmed by their own conduct at the time.
Moreover, the Montrose and the Hooper would have had the
benefit of the evening report from Arlington had they had
proper receiving sets. This predicted worse weather; it read:
‘Increasing east and southeast winds, becoming fresh to strong,
Friday night and increasing cloudiness followed by rain Friday.’
The bare ‘increase’ of the morning had become ‘fresh to strong.’
To be sure this scarcely foretold a gale of from forty to fifty
miles for five hours or more, rising at one time to fifty-six; but if
the four tows thought the first report enough, the second ought
to have laid any doubts. The master of the Montrose himself,
when asked what he would have done had he received a
substantially similar report, said that he would certainly have put

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in. The master of the Hooper was also asked for his opinion, and
said that he would have turned back also, but this admission is
somewhat vitiated by the incorporation in the question of the
statement that it was a ‘storm warning,’ which the witness seized
upon in his answer. All this seems to us to support the
conclusion of the judge that prudent masters, who had received
the second warning, would have found the risk more than the
exigency warranted; they would have been amply vindicated by
what followed. To be sure the barges would, as we have said,
probably have withstood the gale, had they been well found; but
a master is not justified in putting his tow to every test which
she will survive, if she be fit. There is a zone in which proper
caution will avoid putting her capacity to the proof; a coefficient
of prudence that he should not disregard. Taking the situation as
a whole, it seems to us that these masters would have taken
undue chances, had they got the broadcasts.
They did not, because their private radio receiving sets, which
were on board, were not in working order. These belonged to
them personally, and were partly a toy, partly a part of the
equipment, but neither furnished by the owner, nor supervised
by it. It is not fair to say that there was a general custom among
coastwise carriers so to equip their tugs. One line alone did it; as
for the rest, they relied upon their crews, so far as they can be
said to have relied at all. An adequate receiving set suitable for a
coastwise tug can now be got at small cost and is reasonably
reliable if kept up; obviously it is a source of great protection to
their tows. Twice every day they can receive these predictions,
based upon the widest possible information, available to every
vessel within two or three hundred miles and more. Such a set is
the ears of the tug to catch the spoken word, just as the master’s
binoculars are her eyes to see a storm signal ashore. Whatever
may be said as to other vessels, tugs towing heavy coal laden
barges, strung out for half a mile, have little power to
manoeuvre, and do not, as this case proves, expose themselves
to weather which would not turn back stauncher craft. They can
have at hand protection against dangers of which they can learn
in no other way.

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Is it then a final answer that the business had not yet generally
adopted receiving sets? There are, no doubt, cases where courts
seem to make the general practice of the calling the standard of
proper diligence; we have indeed given some currency to the
notion ourselves. Indeed in 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 devices. 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. But here there
was no custom at all as to receiving sets; some had them, some
did not; the most that can be urged is that they had not yet
become general. Certainly in such a case we need not pause;
when some have thought a device necessary, at least we may say
that they were right, and the others too slack. The statute
(section 484, title 46, U. S. Code) does not bear on this situation
at all. It prescribes not a receiving, but a transmitting set, and for
a very different purpose; to call for help, not to get news. We
hold the tugs therefore because had they been properly
equipped, they would have got the Arlington reports. The injury
was a direct consequence of this unseaworthiness.
Decree affirmed.

The Negligence Calculus
Introduction
An alternative way of thinking about negligence has emerged from
the law-and-economics movement: the negligence calculus, also
called the “Hand Formula.” The idea is that a person is obliged to
undertake a precaution when the benefits outweigh the costs. The
particular way this is spelled out in the Hand Formula is that a
defendant has breached its duty of care if it fails to take a precaution
when the burden of doing so is less than the probability of the harm
multiplied by the magnitude of the harm.
Following the case, we will spell this out in a formal way with defined
variables and a mathematically expressed inequality.

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Case: U.S. v. Carroll Towing
The Hand Formula comes to us from an opinion filed 14 years after
the T.J. Hooper. Yet this case was also authored by Judge Learned
Hand and also happens to concern a tugboat.

United States v. Carroll Towing
United States Court of Appeals for the Second Circuit
January 9, 1947
159 F.2d 169. Nos. 96 and 97, Dockets 20371 and 20372.
Conners Marine Company, Inc., against Pennsylvania Railroad
Company, charterer of the covered barge Anna C and
proceedings in the matter of the petition of the Carroll Towing
Company, Inc., as owner of the steamship Joseph F. Carroll.
Grace Line, Inc. impleaded. Before L. HAND, CHASE and
FRANK, Circuit Judges.
Judge LEARNED HAND:
These appeals concern the sinking of the barge, Anna C, on
January 4, 1944, off Pier 51, North River. The Conners Marine
Co., Inc., was the owner of the barge, which the Pennsylvania
Railroad Company had chartered; the Grace Line, Inc., was the
charterer of the tug, Carroll, of which the Carroll Towing Co.,
Inc., was the owner. The decree in the limitation proceeding
held the Carroll Company liable to the United States for the loss
of the barge’s cargo of flour, and to the Pennsylvania Railroad
Company, for expenses in salving the cargo and barge; and it
held the Carroll Company also liable to the Conners Company
for one half the damage to the barge; these liabilities being all
subject to limitation. The decree in the libel suit held the Grace
Line primarily liable for the other half of the damage to the
barge, and for any part of the first half, not recovered against
the Carroll Company because of limitation of liability; it also
held the Pennsylvania Railroad secondarily liable for the same
amount that the Grace Line was liable. The Carroll Company
and the Pennsylvania Railroad Company have filed assignments
of error.

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The facts, as the judge found them, were as follows. On June 20,
1943, the Conners Company chartered the barge, Anna C to the
Pennsylvania Railroad Company at a stated hire per diem, by a
charter of the kind usual in the Harbor, which included the
services of a bargee, apparently limited to the hours 8 A.M. to 4
P.M. On January 2, 1944, the barge, which had lifted the cargo
of flour, was made fast off the end of Pier 58 on the Manhattan
side of the North River, whence she was later shifted to Pier 52.
At some time not disclosed, five other barges were moored
outside her, extending into the river; her lines to the pier were
not then strengthened. At the end of the next pier north (called
the Public Pier), lay four barges; and a line had been made fast
from the outermost of these to the fourth barge of the tier
hanging to Pier 52. The purpose of this line is not entirely
apparent, and in any event it obstructed entrance into the slip
between the two piers of barges. The Grace Line, which had
chartered the tug, Carroll, sent her down to the locus in quo to
‘drill’ out one of the barges which lay at the end of the Public
Pier; and in order to do so it was necessary to throw off the line
between the two tiers. On board the Carroll at the time were not
only her master, but a ‘harbormaster’ employed by the Grace
Line. Before throwing off the line between the two tiers, the
Carroll nosed up against the outer barge of the tier lying off Pier
52, ran a line from her own stem to the middle bit of that barge,
and kept working her engines ‘slow ahead’ against the ebb tide
which was making at that time. The captain of the Carroll put a
deckhand and the ‘harbormaster’ on the barges, told them to
throw off the line which barred the entrance to the slip; but,
before doing so, to make sure that the tier on Pier 52 was safely
moored, as there was a strong northerly wind blowing down the
river. The ‘harbormaster’ and the deckhand went aboard the
barges and readjusted all the fasts to their satisfaction, including
those from the Anna C to the pier.
After doing so, they threw off the line between the two tiers and
again boarded the Carroll, which backed away from the outside
barge, preparatory to ‘drilling’ out the barge she was after in the
tier off the Public Pier. She had only got about seventy-five feet
away when the tier off Pier 52 broke adrift because the fasts

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from the Anna C, either rendered, or carried away. The tide and
wind carried down the six barges, still holding together, until the
Anna C fetched up against a tanker, lying on the north side of
the pier below- Pier 51- whose propeller broke a hole in her at
or near her bottom. Shortly thereafter: i.e., at about 2:15 P.M.,
she careened, dumped her cargo of flour and sank. The tug,
Grace, owned by the Grace Line, and the Carroll, came to the
help of the flotilla after it broke loose; and, as both had syphon
pumps on board, they could have kept the Anna C afloat, had
they learned of her condition; but the bargee had left her on the
evening before, and nobody was on board to observe that she
was leaking. The Grace Line wishes to exonerate itself from all
liability because the ‘harbormaster’ was not authorized to pass
on the sufficiency of the fasts of the Anna C which held the tier
to Pier 52; the Carroll Company wishes to charge the Grace
Line with the entire liability because the ‘harbormaster’ was
given an over-all authority. Both wish to charge the Anna C with
a share of all her damages, or at least with so much as resulted
from her sinking. The Pennsylvania Railroad Company also
wishes to hold the barge liable. The Conners Company wishes
the decrees to be affirmed.
The first question is whether the Grace Line should be held
liable at all for any part of the damages. The answer depends
first upon how far the ‘harbormaster’s’ authority went, for
concededly he was an employee of some sort. Although the
judge made no other finding of fact than that he was an
‘employee,’ in his second conclusion of law he held that the
Grace Line was ‘responsible for his negligence.’ Since the facts
on which he based this liability do not appear, we cannot give
that weight to the conclusion which we should to a finding of
fact; but it so happens that on cross-examination the
‘harbormaster’ showed that he was authorized to pass on the
sufficiency of the facts of the Anna C. He said that it was part of
his job to tie up barges; that when he came ‘to tie up a barge’ he
had ‘to go in and look at the barges that are inside the barge’ he
was ‘handling’; that in such cases ‘most of the time’ he went in
‘to see that the lines to the inside barges are strong enough to
hold these barges’; and that ‘if they are not’ he ‘put out sufficient

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other lines as are necessary.’ That does not, however, determine
the other question: i.e., whether, when the master of the Carroll
told him and the deckhand to go aboard the tier and look at the
fasts, preparatory to casting off the line between the tiers, the
tug master meant the ‘harbormaster’ to exercise a joint authority
with the deckhand. As to this the judge in his tenth finding said:
‘The captain of the Carroll then put the deckhand of the tug and
the harbor master aboard the boats at the end of Pier 52 to
throw off the line between the two tiers of boats after first
ascertaining if it would be safe to do so.’ Whatever doubts the
testimony of the ‘harbormaster’ might raise, this finding settles it
for us that the master of the Carroll deputed the deckhand and
the ‘harbormaster,’ jointly to pass upon the sufficiency of the
Anna C’s fasts to the pier. The case is stronger against the Grace
Line than Rice v. The Marion A.C. Meseck, was against the tug
there held liable, because the tug had only acted under the
express orders of the ‘harbormaster.’ Here, although the
relations were reversed, that makes no difference in principle;
and the ‘harbormaster’ was not instructed what he should do
about the fast, but was allowed to use his own judgment. The
fact that the deckhand shared in this decision, did not exonerate
him, and there is no reason why both should not be held equally
liable, as the judge held them.
We cannot, however, excuse the Conners Company for the
bargee’s failure to care for the barge, and we think that this
prevents full recovery. First as to the facts. As we have said, the
deckhand and the ‘harbormaster’ jointly undertook to pass upon
the Anna C’s fasts to the pier; and even though we assume that
the bargee was responsible for his fasts after the other barges
were added outside, there is not the slightest ground for saying
that the deckhand and the ‘harbormaster’ would have paid any
attention to any protest which he might have made, had he been
there. We do not therefore attribute it as in any degree a fault of
the Anna C that the flotilla broke adrift. Hence she may recover
in full against the Carroll Company and the Grace Line for any
injury she suffered from the contact with the tanker’s propeller,
which we shall speak of as the ‘collision damages.’ On the other
hand, if the bargee had been on board, and had done his duty to

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his employer, he would have gone below at once, examined the
injury, and called for help from the Carroll and the Grace Line
tug. Moreover, it is clear that these tugs could have kept the
barge afloat, until they had safely beached her, and saved her
cargo. This would have avoided what we shall call the ‘sinking
damages.’ Thus, if it was a failure in the Conner Company’s
proper care of its own barge, for the bargee to be absent, the
company can recover only one third of the ‘sinking’ damages
from the Carroll Company and one third from the Grace Line.
For this reason the question arises whether a barge owner is
slack in the care of his barge if the bargee is absent.
As to the consequences of a bargee’s absence from his barge
there have been a number of decisions; and we cannot agree
that it never ground for liability even to other vessels who may
be injured.~ It appears~ there is no general rule to determine
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. However, in any cases where
he would be so liable for injuries to others obviously he must
reduce his damages proportionately, if the injury is to his own
barge. 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 her; 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 other hand, the barge
must not be the bargee’s prison, even though he lives aboard; he

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must go ashore at times. We need 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, as Ward, J.,
supposed in The Kathryn B. Guinan; and that, if so, the situation is
one where custom should control. We leave 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 been away all the time, and we hold
that his fabricated story was affirmative evidence that he had no
excuse 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 expectation that, with the inevitable
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 (unless he had some excuse for his
absence), during the working hours of daylight.~
Decrees reversed and cause remanded for further proceedings in
accordance with the foregoing.

The BPL Formula’s Place in Torts
Based on the Carroll Towing opinion, it does not appear that Judge
Hand intended to wholly redefine negligence using algebra. Instead, it
looks like he meant to use algebra as a way of illustrating the
negligence concept of what is reasonable. Yet however modestly
Judge Hand might have intended it, his algebraic way of thinking
about breach of the duty of care has been embraced by law-andeconomics scholars as holding the key to describing liability in a way
that promotes economic efficiency.
The key figure in the promotion of the Hand Formula was Professor
Richard A. Posner of the University of Chicago. In a 1972 article,
Professor Posner – now a judge on the Seventh Circuit – saluted

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Carroll Towing as providing the path to understanding negligence in
terms of a cost-benefit analysis. Posner rejected the view that
negligence is about compensation or morals. Instead, he argued that
it is about economics.
“It is time to take a fresh look at the social
function of liability for negligent acts. The
essential clue, I believe, is provided by Judge
Learned Hand’s famous formulation of the
negligence standard – one of the few attempts
to give content to the deceptively simple
concept of ordinary care. [I]t never purported to
be original but was an attempt to make explicit
the standard that the courts had long applied.
… Hand was adumbrating, perhaps unwittingly,
an economic meaning of negligence.
Discounting (multiplying) the cost of an
accident if it occurs by the probability of
occurrence yields a measure of the economic
benefit to be anticipated rom incurring the costs
necessary to prevent the accident.”

Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29, 32
(1972). The idea of reconceptualizing negligence in economic terms,
so that it will serve economic goals, has been highly influential in
scholarly circles. The impact in the courts has been considerably
smaller. While there are sporadic examples of courts expressly
engaging in the negligence calculus – including opinions authored by
Judge Posner – the formula has not been widely embraced by the
bench. Insofar as the idea has had influence, it has been followed by
controversy.
How the BPL Formula Works
In U.S. v. Carroll Towing, the BPL formula assigns variables as follows:
B is the burden, P is the probability that something will go
wrong, and L is the total loss that would result.
When multiplied together, P and L represent the total amount of
risk. It follows from this that just because the L is big, it is not
necessarily the case that the total level of risk is big. A relatively large
harm, when coupled with a miniscule probability, might represent a

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relatively small risk overall. The variable P can be thought of as
“discounting” L.
What you might call the “negligence condition” exists when the
following inequality is true:
B < PL
If we incorporate that formula into an algorithm, we would have this:
Regarding a certain precaution:
If B < PL,
and if the certain precaution is not taken,
then the duty of care is breached.
If the PL is greater than B, there is a breach of the duty of care. If the
B is greater than the PL, then there is there is no breach. What
happens if B = PL? This essentially reflects a tie between the plaintiff
and defendant on the breach-of-duty question. Since the fundaments
of civil procedure mandate that the plaintiff has the burden of proof,
such a tie would, in essence, go to the defendant, since it is a failure
to prove breach. Thus, B = PL means there is no breach of the duty
of care.
Some important things to keep in mind:
The L in the formula reflects the total amount of loss suffered –
not the loss suffered by the defendant. This is where BPL analysis
can be distinguished from what most people think of as “cost-benefit
analysis.” When a business manager weighs the costs and the benefits
of undertaking some initiative, the manager is looking at the costs
and the benefits to the firm. That is not how the BPL formula is
meant to work. The BPL formula is meant to take into account the
entire loss suffered anywhere.
The P in the formula is a number ranging from 0 to 1. If there is
no chance that the harm could come to pass, then P is 0. If it is
certain that the harm would come to fruition absent the precaution,
then P is 1. If there is a 50% probability – alternately stated as odds
of 1 to 1, or a chance of 1 in 2 – then the P is 0.5.

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Example: Dangling Danger – Suppose a company will be
using a crane to move a large generator assembly to the top
of a tall building. If the crane or cabling fails, then the
equipment package will fall, crushing a single-story restaurant
below. The move will be done when the restaurant is closed
and vacated, so there will be no danger to people. If the
restaurant were to be destroyed, it would represent a loss to
its proprietors of $600,000. The kind of crane involved,
making this kind of maneuver, has a failure rate of 1 in
10,000. Using a second crane to lift the load at the same time
would eliminate this risk, but it would cost an additional
$12,000 to hire. If no second crane is used, and the load falls,
destroying the restaurant, then according to BPL analysis, was
there a breach of the duty of care? In this case, L = $600,000
and B = $12,000. To get P, we divide 1 by 10,000, so P =
0.0001. P multiplied by L is $60. Since the B of $12,000 is not
less than the PL of $60, it is not a breach of the duty of care
to forgo the precaution.
In order to make the analysis work, you need to do it on a
precaution-by-precaution basis. In the example just given, there are
probably many things that the construction company could do to
avoid danger to the restaurant. It could disassemble the package and
move it in smaller bundles. It could redesign the new building so that
it didn’t require a generator assembly on top. It could build a
temporary protective shell around the restaurant to protect it in the
case of a crane failure. There is no need to put all these into the BPL
formula at once, because they all represent different decisions. BPL
analysis works on one decision at a time – providing an answer as to
whether it is a breach of the duty of care to do or omit to do a certain
something.
Also, to make the analysis work, the B and the L must be expressed
in the same units. For instance, if B and L are both expressed in
present-value dollars, the proper comparison can be made. If the B
were in dollars and the L in euros, you would have to convert one
into the other. The time value of money can be a complicating factor
as well. If the B is expressed in present dollars – which would make

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sense, since money would have to be spent on the precaution now –
the L must be expressed in present dollars as well. This may require
some translation, because if the harm would be suffered 10 years
from now, then whatever the loss would represent in dollars at that
time must be translated into a figure stated in present dollars. This
can be accomplished by “discounting” the future funds to present
value. If the harm would not necessarily take place at a certain time in
the future, but may take place at any time over the next 25 years, say,
perhaps with the magnitude of the loss varying over time, then the
calculation becomes very complex – something probably better
suited for an accountant rather than a lawyer. The point is that BPL
analysis is about comparing numerical values, and that necessarily
means they must be expressed in equivalent units.
If compensation for different currencies and the time value of money
is a difficult problem, an even bigger challenge lurks where the loss is
not originally stated in terms of money at all, but is stated in terms of
lives potentially cut short. If the burden is expressed in terms of
dollars, but the danger is one of loss of life, then to do the analysis
you must put a dollar-value on human life. Distasteful as it may seem,
if you are going to use BPL analysis in a situation where human life is
on the line, there is no way around this need to monetize death.
As it turns out, the torts system is quite accustomed to putting a
dollar value on human life in the case of wrongful death claims. This
thorny damages question – how much money will fairly compensate a
plaintiff for the loss of a loved one – is a subject for a later chapter.
Putting a dollar value on human life is also a regular part of the job
for government regulators trying to decide questions such as how
much money should be spent on motor vehicle safety measures or
environmental remediation. The U.S. Department of Transportation
has used a value of $6 million per human life to justify new vehicle
standards, such as more crush-resistant roofs on cars. In 2008, the
U.S. Environmental Protection Agency valued a single human at
$7.22 million in making decisions about limits on air pollution. In
2010, the EPA used a value of $9.1 million per life in proposing new,
tighter standards. Another way of valuing human life is by the year. A
common figure used by insurers to decide whether life-saving

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medical treatment should be provided is $50,000 per year of “quality”
life. Another estimate came up with $129,000 per quality year per
person. (See Binyamin Appelbaum, “As U.S. Agencies Put More
Value on a Life, Businesses Fret,” N.Y. TIMES, Feb. 16, 2011;
Kathleen Kingsbury, “The Value of a Human Life: $129,000,” TIME,
Tuesday, May 20, 2008.)
Check-Your-Understanding Questions About the Hand
Formula
A. Aaron does a Hand Formula calculation, specifying values as
follows: B = $77,000, P = 25, L = $1 million. On this basis he
calculates that the defendant is negligent for not undertaking the
precaution. What has Aaron done wrong?
B. Brinda does a Hand Formula calculation, specifying values as
follows: B = 44 work hours, P = 0.003, L = $10,000. On this basis
she calculates that the defendant is not negligent for neglecting the
precaution. What has Brinda done wrong?
Some Simple Problems Using the Hand Formula
C. A company built a temporary scaffolding structure near a parade
route for a television network. The purpose was to support several
remotely controlled television cameras to provide national coverage
of a New Year’s Day parade. On the day of the parade, a large float
goes out of control and strikes the structure. The cameras plummet
and are completely destroyed. At trial, the plaintiff television network
produces evidence that the cameras together were worth $65,000.
The evidence shows that the defendant company could have built the
scaffolding structure with reinforcements such that it would not have
collapsed following such a collision, but this would have cost an
additional $2,000 to accomplish. Expert testimony at trial explains
that based on past accidents, there was a 1-in-10,000 chance that a
float would have veered off course at this particular place during the
parade. Using BPL analysis, did the defendant company breach its
duty of care?
D. A natural-gas pipeline operated by the defendant leaks and causes
an explosion. The explosion destroys the plaintiff’s aviation fuel

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depot. The plaintiff’s fuel depot is the only structure along this
section of pipeline. The lost depot and the inventory of fuel it
contains totals $12 million. The defendant company that operates the
pipeline could have avoided the accident by installing an automatic
cut-off mechanism on the section of pipeline near the plaintiff’s
warehouse. The installation of the mechanism would have cost $8 per
year, amortized over the life of the pipeline. Experts estimated the
chance of a pipeline explosion along this section of pipe in any given
year to be 1 in 140,000. Using BPL analysis, did the defendant
pipeline company breach its duty of care?
Some Not-So-Simple Problems Using the Hand
Formula
E. A different natural gas pipeline leaks and causes an explosion,
destroying the plaintiff’s car, a new minivan valued at $35,000. The
theory of negligence urged at trial is that the defendant pipeline
operator should have installed a centrally controlled multi-modal
pressure-monitoring/chemical-sniffer system, which, if installed,
would have prevented this type of accident not only from happening
at the location where plaintiff’s car was parked, but anywhere along
the pipeline. Installation of the system would have cost an amortized
$15 million per year of the pipelines’ operational life. The pipeline is
500 miles long runs through many densely populated urban areas,
including business/financial centers, hospitals, and government
facilities. In that sense, it appears lucky that this mishap happened in
an isolated area where it only destroyed an unoccupied minivan. At
trial, an expert estimated that an average explosion along the length
of the pipeline, taking into account the destructive radius and the
concentration of people and property along the route, would
represent a loss of 20 lives plus $300 million in property damage. The
probability of such an explosion, the expert estimated, was 1-in-200
in any given year over the operating lifetime of the pipeline. The
probability that the defendant’s minivan, in particular, would be
destroyed, the expert estimated at 1 in 10,000,000. Can BPL analysis
be used to determine whether the defendant company breached its
duty of care? Is so, what result?

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F. A new particle accelerator has been built to collide atomic nuclei
together at enormous energies to probe the leading edge of
fundamental physics. Physicists are very excited about the data the
experiment will produce, and it is possible that it could reveal new
truths about our universe. The project is not, however, expected to
produce anything of practical value. Because the machine is built to
explore new realms of physics, there are some unknowns about what
the machine could produce. One hypothesized danger is that the
collider could produce strangelets – microscopic particles of “strange
matter” – that could start a chain reaction converting all normal
matter on Earth into strange matter, which would reduce the Earth
to a hyperdense ball, about 100 meters wide, destroying all life in the
process. No one has calculated a probability of such a disaster, but
one team of physicists calculated the ceiling on the probability of a
strangelet disaster as no more than 1-in-50,000. The collider
represents a total cost of about $1.1 billion. Astronomers believe that
the Sun will eventually expand as it dies, scorching Earth and killing
everything on it. Assume the planet has another 7 billion years before
it is engulfed by the Sun. The current world population is about
7 billion. Can BPL analysis be used to determine whether operating
the collider represents a breach of the duty of due care? If so, what
result?

Res Ipsa Loquitor
The doctrine of res ipsa loquitor provides a special way for a plaintiff
to prevail on the element of breach of the duty of due care. To
understand how res ipsa loquitor works and why it is advantageous to
some plaintiffs, it’s first necessary to understand some context.
The Usual Necessity of Specific Evidence of Breach
Ordinarily, a negligence plaintiff must have “a specific theory of
negligence” to take to the jury. That is to say, the plaintiff must prove
a breach of the duty of care with specific evidence as to what
happened, allowing the jury to conclude that the particular conduct
was in breach of the duty of care.
For instance, if the evidence shows that plaintiff fell in the
defendant’s store and was injured as a result, no prima facie case for

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negligence has been made out. Why not? There is nothing in
evidence that can provide a fair inference that any breach of the duty
of care occurred. Perhaps the plaintiff fell because he slipped on
something just dropped by a fellow customer. Perhaps the plaintiff
fell because he was tripped by another customer. Perhaps the plaintiff
tripped over his own feet. If, however, the plaintiff presents
testimony from a store clerk that where the plaintiff fell there was a
pool of water on the floor owing to an unrepaired roof leak, then
there is specific evidence of conduct constituting a breach of the duty
of due care.
The Place for Res Ipsa Loquitor
While specific evidence of a breach of the duty of care is the norm in
negligence law and is generally required, sometimes there is a lack of
evidence as to how an accident happened. Yet, because of the
circumstances, it may be obvious that there was negligence. In such a
case, the doctrine of res ipsa loquitor allows a plaintiff to prevail in
spite of a lack of specific evidence showing a breach of the duty of
care.
Suppose a pedestrian walks along the sidewalk next to a multistory
building where a flour warehouse occupies an upper floor. A barrel
of flour suddenly drops on top of the plaintiff. There is no specific
evidence of how the barrel fell. Was there negligence? You might say
that a falling barrel of flour pretty much speaks for itself. And that is
exactly what the court said in the leading case of Byrne v. Boadle: “The
thing speaks for itself.” Only Chief Baron Pollock said it in Latin:
“Res ipsa loquitor.”
With the doctrine of res ipsa loquitor, the law is essentially saying that
even when we don’t know exactly what happened, it is nonetheless
obvious that, whatever it was, it was likely negligent.
Case: Byrne v. Boadle
This case, from mid-19th-Century Liverpool, is the progenitor of res
ipsa loquitor doctrine.

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Byrne v. Boadle
Court of Exchequer
November 25, 1863
159 E.R. 299. England. 2 Hurlstone and Coltman 722. Opinion
by POLLOCK, C.B. BRAMWELL, B.; CHANNELL, B.; and
PIGOTT, B. concurred, with CHANNELL writing separately.
The FACTS as set forth by the REPORTER:
The plaintiff was walking in a public street past the defendant’s
shop when a barrel of flour fell upon him from a window above
the shop, and seriously injured him. Held sufficient primâ facie
evidence of negligence for the jury, to cast on the defendant the
onus of proving that the accident was not caused by his
negligence.~
Declaration:
For that the defendant, by his servants, so
negligently and unskilfully managed and lowered
certain barrels of flour by means of a certain
jigger-hoist and machinery attached to the shop
of the defendant, situated in a certain highway,
along which the plaintiff was then passing, that
by and through the negligence of the defendant,
by his said servants, one of the said barrels of
flour fell upon and struck against the plaintiff,
whereby the plaintiff was thrown down,
wounded, lamed, and permanently injured, and
was prevented from attending to his business
for a long time, to wit, thence hitherto, and
incurred great expense for medical attendance,
and suffered great pain and anguish, and was
otherwise damnified.~
At the trial before the learned Assessor of the Court of Passage
at Liverpool, the evidence adduced on the part of the plaintiff
was as follows: A witness named Critchley said: “On the 18th
July, I was in Scotland Road, on the right side going north,
defendant’s shop is on that side. When I was opposite to his
shop, a barrel of flour fell from a window above in defendant’s
house and shop, and knocked the plaintiff down. He was carried

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into an adjoining shop. A horse and cart came opposite the
defendant’s door. Barrels of flour were in the cart. I do not
think the barrel was being lowered by a rope. I cannot say: I did
not see the barrel until it struck the plaintiff. It was not swinging
when it struck the plaintiff. It struck him on the shoulder and
knocked him towards the shop. No one called out until after the
accident.” The plaintiff said: “On approaching Scotland Place
and defendant’s shop, I lost all recollection. I felt no blow. I saw
nothing to warn me of danger. I was taken home in a cab. I was
helpless for a fortnight.” (He then described his sufferings.) “I
saw the path clear. I did not see any cart opposite defendant’s
shop.” Another witness said: “I saw a barrel falling. I don’t
know how, but from defendant’s.” The only other witness was a
surgeon, who described the injury which the plaintiff had
received. It was admitted that the defendant was a dealer in
flour.
It was submitted, on the part of the defendant, that there was no
evidence of negligence for the jury. The learned Assessor was of
that opinion, and nonsuited the plaintiff, reserving leave to him
to move the Court of Exchequer to enter the verdict for him
with damages, the amount assessed by the jury.~

CHIEF BARON CHARLES EDWARD POLLOCK:
There are certain cases of which it may be said res ipsa loquitur,
and this seems one of them. ~I think it would be wrong to lay
down as a rule that in no case can 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 primâ facie evidence 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 seems to
me preposterous. So in the building or repairing a house, or
putting pots on the chimneys, if a person passing along the road
is injured by something falling upon him, I think the accident

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alone would be primâ facie evidence of negligence. Or if an
article calculated to cause damage is put in a wrong place and
does mischief, I think that those whose duty it was to put it in
the right place are primâ facie responsible, and if there is any
state of facts to rebut the presumption of negligence, they must
prove them. The present case upon the evidence 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 controul of it; and in my opinion the fact
of its falling is primâ facie evidence of negligence, and the
plaintiff who was injured by it is not bound to shew that it could
not fall without negligence, but if there are any facts inconsistent
with negligence it is for the defendant to prove them.

The Requirements for Res Ipsa Loquitor
The two requirements for res ipsa loquitor are that the antecedent to
the accident was (1) likely negligence (that is, likely a breach of the
duty of care), and (2) likely the conduct of the defendant.
These requirements are dictated by logic: If it is not likely negligence
or if it is not likely the defendant who caused the accident, then it
cannot be said that the defendant likely breached the duty of care.
Note that some courts are stricter. Instead of requiring the plaintiff
merely to show that it was likely the defendant’s conduct at issue,
some courts require proof that that the instrumentality of harm was
in the defendant’s “exclusive control.” Such a view is not the
prevailing modern one.
The Effect of Res Ipsa Loquitor
If the plaintiff successfully convinces the court that res ipsa loquitor
should be allowed in the case, then this usually means one of two
things, depending on the jurisdiction. In some jurisdictions, the effect
of res ipsa loquitor is that the jury is permitted – but not required –
to draw an inference that the defendant breached the duty of care.
Other jurisdictions hold that the effect of res ipsa loquitor is to
establish the breach element of the negligence case in the plaintiff’s

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favor, switching the burden to the defendant, who can then rebut the
presumption of breach with specific evidence.
This burden-shifting function of res ipsa loquitor is potentially
important where specific facts are difficult for the plaintiff to
discover. Such was likely the case with Byrne v. Boadle. In modern
American litigation, however, civil procedure rules allow very wideranging discovery. So with the kind of depositions and document
requests that are allowed today, it might be quite easy to discover
exactly what happened. When such discovery does not work to shed
light on the matter, however – perhaps because of uncooperative or
unavailable witnesses – then the burden-shifting function of res ipsa
loquitor remains important as a way of making it the defendant’s
problem to find out what was going on at the defendant’s place of
business or arena of operation that caused the emergence of the
means that did the plaintiff harm.
Recurrent Situations for Res Ipsa Loquitor
Certain situations come up again and again as candidates for res ipsa
loquitor.
One such recurrent situation involves gravity-driven injuries – like
the falling barrel of Byrne. There probably are no more upper-floor
barrel warehouses in crowded pedestrian areas these days, but there
are still many accidents where gravity is the moving force. A falling
light fixture in a sports arena, for instance, is a good candidate for res
ipsa loquitor: Lights don’t usually fall absent negligence (so the first
prong of “likely negligence” is met), and it is probable that the
operator of the sports arena was the negligent party (“likely the
conduct of the defendant”).
Airplane crashes have been a frequent source for the invocation of
res ipsa loquitor. For example, in Widmyer v. Southeast Skyways, Inc.,
584 P.2d 1 (Alaska 1978), the Supreme Court of Alaska held that “air
crashes do not normally occur absent negligence, even in inclement
weather.” The court based its reasoning on the strong general track
record of safety in aviation in the late 1970s. And of course, since
then, aviation has only gotten safer.

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Packaged food is another wellspring of res ipsa loquitor cases. In
particular, an almost unbelievable number of mid-20th-century cases
involve glass bottles of Coca-Cola soft drinks. In Payne v. Rome CocaCola Bottling Co., 10 Ga.App. 762, (Ga.App. 1912), the court allowed
res ipsa loquitor to be used by a customer whose sight was destroyed
when an exploding bottle propelled glass fragments through his eye.
The Payne court summed up res ipsa loquitor about as well as anyone
before or since when it said:
“Bottles filled with a harmless and refreshing
beverage do not ordinarily explode. When they
do, an inference of negligence somewhere and
in somebody may arise.”

A sampling of other cases: Zentz v. Coca Cola Bottling Co. of Fresno, 39
Cal.2d 436 (Cal. 1952) (restaurant worker severely cut by exploding
bottle allowed to use res ipsa loquitor); Groves v. Florida Coca-Cola
Bottling Co, 40 So.2d 128 (Fla. 1949) (waitress injured by exploding
bottle allowed to use res ipsa loquitor); Honea v. Coca Cola Bottling Co.,
143 Tex. 272 (Tex. 1944) (15-year-old boy who suffered a severe
wrist injury from exploding bottle when moving a case of Coca-Cola
allowed to argue res ipsa loquitor); Escola v. Coca Cola Bottling Co. of
Fresno, 24 Cal.2d 453 (Cal. 1944) (waitress injured by exploding bottle
allowed to use res ipsa loquitor); Starke Coca-Cola Bottling Co. v.
Carrington, 159 Fla. 718 (Fla. 1947) (vending machine customer
injured by exploding bottle allowed to use res ipsa loquitor).
Another recurrent arena for res ipsa loquitor involves nursery schools
and nursing homes – facilities where the very young or very old are
cared for. What very young children and the infirmed elderly can
have in common is an inability to speak for themselves, leaving them
unable to explain how they were injured. When such persons are hurt
without any witnesses other than the defendants, the situation is ripe
for a cover up: If the defendants lie and destroy evidence, it may well
be impossible to make a specific showing of negligent conduct.
Case: Fowler v. Seaton
While most cases in this book take the form of judicial opinions, the
reading for this case is the opening statement delivered to the jury by

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the plaintiff’s attorney. The case illustrates the potential for res ipsa
loquitor in a child-care setting.

Fowler v. Seaton
Superior Court of Los Angeles
c. 1963
JENNY GENE FOWLER, a Minor, etc., Plaintiff, v.
ANNABELLE SEATON, Defendant. L.A. No. 27865.
Reproduced in 61 Cal.2d 684-686.
OPENING STATEMENT for the PLAINTIFF by
attorney WILLIAM P. CAMUSI:
Plaintiff in this case of Fowler versus Seaton expects to prove
the following facts: Minor plaintiff, Jenny Gene Fowler began
attending the Happy Day Nursery School in September 1958.
The Happy Day Nursery was a pre school nursery where
children would be left for the day by their parents. Their nursery
consisted of a house and a little children's playground with such
playthings as a swing and slide and similar paraphernalia. The
Happy Day Nursery is located in the City of Van Nuys~. The
Happy Day Nursery was owned and operated at all times herein
relevant by the defendant, Annabelle Seaton.
The nursery school made a weekly monetary charge to the
parents of such pre school age children who attended there. The
school is, of course, a private school and the defendant was at
all times licensed to operate such a school.
On January 21, 1959 the minor plaintiff, Jenny Gene Fowler was
taken to the said Happy Day Nursery School by her mother and
left in charge of and custody of the defendant at about 9:00 a.m.
of that day. At that time Jenny Gene Fowler was three years and
ten months of age. When her mother left her in the custody of
the defendant on that morning of January 21, 1959, Jenny Gene
Fowler was in good health and sound of limb and body and she
was well and had no marks on her body.
Jenny Gene Fowler's mother picked her up at the nursery school
at approximately 6:00 p.m. of said day. At that time the

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defendant told plaintiff's mother that Jenny Fowler had had an
accident in that the child had wet her pants.
However, we will offer proof that the child had stopped wetting
her pants approximately a year prior to this day of January 21,
1959.
On the way home that evening and for the remainder of the
evening the child appeared downcast or depressed and stayed
close to her mother at all times. At the dinner table at
approximately 7:00 p.m. Jenny Gene Fowler’s father noticed
that the child's eyes were crossed. The child's hair was arranged
in bangs over her forehead and her forehead was not usually
visible. At that time the mother approached the child to look
into the child's eyes. The mother pushed the child’s hair away
from the forehead, for the first time noticed a sizable round
protruding bump on the child’s forehead.
Jenny Gene Fowler had been in the mother's immediate
presence ever since the mother had picked her up at the school,
the nursery school, and the child had not received any injury or
had not been in any accident whatsoever from the time she was
picked up at the nursery school until her parents observed the
cross eyes and bump on the child's forehead at the dinner table.
The mother immediately called the defendant at the nursery
school and asked what had happened to plaintiff at the school
that day. Defendant replied that another child had struck the
plaintiff.
Attorney for the minor plaintiff took the deposition of the
defendant Annabelle Seaton and Miss Seaton testified in effect
as follows:
Near the end of the day defendant had four or five children in a
room seated in a semi circle on the floor looking at television
while the children were waiting to be picked up by their parents.
Minor plaintiff was one of the children in this group. None of
the children in this group were more than five years of age. The
defendant testified that she was in the room somewhat behind
the children at the time observing them, when suddenly a little
boy named Bobbie Schimp seated on the floor next to minor

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plaintiff hit minor plaintiff without warning in the forehead area
of her head. The defendant testified that Bobbie Schimp had
nothing in his hands.
Some time early the following morning, January 22, 1959, minor
plaintiff had a nose bleed and was vomiting. She also had a
slight temperature. From the evening of January 21, 1959 minor
plaintiff's eyes would intermittently cross and uncross until
within several months the child's eyes were constantly crossed.
The minor plaintiff had never had cross eyes before the
accident. Plaintiff will prove by a competent medical doctor that
plaintiff, Jenny Gene Fowler, suffered a concussion of the brain
on January 21, 1959, and that a blow to the forehead – and that
said blow to the forehead caused said concussion, that said blow
and assault resulted, and shock resulted in Jenny Gene Fowler's
eyes becoming crossed.
We will prove through said medical authority that some children
have a latent tendency to crossing of the eyes. That the fusion
mechanism which causes a person’s eyes to function in parallel
unison and see singularly is very delicately balanced in a small
child the age of minor plaintiff, and that a blow or deep shock
which might result from a blow may cause the fusion
mechanism to cease to function properly and that the delicate
muscles of the eyes become imbalanced.
As a result of the accident minor plaintiff had had surgery to the
right eye. Her eyes are still crossed. We will prove through a
medical specialist that one additional operation will be necessary
and possibly a third, that cosmetically the appearance of
plaintiff's eyes can be improved to normal or almost normal
position, she may have some impairment of good sight.
We will offer proof of certain unpaid medical bills to which
plaintiff is responsible and the estimated cost of future medical
care and surgery to her eyes necessitated by the accident.
[E]ither because of the shock or fright resulting from the
accident or because of the age of plaintiff, she has been unable
to state or give any information concerning the accident. No

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information is available from the other children because of their
tender years.
Plaintiff will prove through a medical doctor that the blow on
the forehead and resulting concussion to minor plaintiff on
January 21, 1959 was of such a force that it would have been
impossible for a boy five years of age or less sitting on the floor
with nothing in his hands to have delivered a blow of such force
as to have caused the said injuries to minor plaintiff, and that
the only inference that can be drawn is that the defendant,
Annabelle Seaton, is not telling us what really happened that day
at the nursery school and that the only reasonable inference
which can be drawn is that the defendant, Annabelle Seaton, did
not exercise reasonable care for the safety of the children in her
care and custody, and, more specifically with reference to minor
plaintiff.
I should also state with regard to the damages sustained by the
minor plaintiff and as a result of her eyes crossing she has
become more withdrawn and has certain psychological
problems and has not done as well in school as she might
otherwise had it not been for this accident.

Postscript on Fowler v. Seaton
Following the opening statement, the defendant moved to dismiss
the case on the basis that the doctrine of res ipsa loquitor was
inapplicable to the case. The court granted the motion, but the
Supreme Court of California reversed, saying:
“Not only was the plaintiff healthy when
delivered and badly injured when returned to
her parents, but it appears that defendant had a
guilty conscience and tried to cover up the
injury. Here we have a severe and unusual
injury,~ one that does not normally occur in
nursery schools if the children are properly
supervised. We have a volunteer explanation
that was inferably false, and, when faced with a
demand to explain, the proffering of another
inferably false explanation. We have a case
where it appears that the plaintiff did not

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contribute to her own injuries. Thus the
proffered evidence showed the existence of a
duty of careful supervision owed by defendant
to plaintiff. Under the circumstances it is
inferable that defendant had a consciousness of
guilt, knew the cause of the injury, was under a
duty to explain, and was trying to conceal it.
Thus it may be reasonably inferred that the duty
was violated. Certainly it is more probable than
not that the injury was the result of defendant’s
faulty supervision.”

The Similarity of Res Ipsa Loquitor to Strict Liability
The application of res ipsa loquitor in negligence bears considerable
practical similarity to the cause of action for strict liability. As
discussed in the tort-law overview of Chapter 2, strict liability is a
cause of action that, like negligence, is available for personal injuries
and property damage suffered as a result of accidents. In terms of
doctrine, strict liability is the same as negligence with one very large
difference: The elements of duty of care and breach of the duty of
care in the negligence cause of action are replaced in strict liability by
a single element of “absolute duty of safety,” which requires the
plaintiff to show that the situation in which the harm arose falls into
one of five categories: ultrahazardous activities, defective products,
wild animals, trespassing livestock, and domestic animals with known
vicious propensities. If so, there is no need to show that the
defendant was careless; so long as an injury and causation can be
shown, the defendant is on the hook for the damages.
How res ipsa loquitor and strict liability are similar is that in either
instance, the plaintiff is relieved of having to show that it was
defendant’s carelessness that led to the injury. With res ipsa loquitor,
the plaintiff is given a presumption in lieu of having to present
evidence on breach of the duty of care. With strict liability, the
element of breach of duty of care is not part of the prima facie case.
Either way, the defendant becomes absolutely responsible should
something go wrong. You will also notice overlap in the situations in
which res ipsa loquitor and strict liability are imposed. The exploding
Coca-Cola bottle cases, for instance, were brought as negligence

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claims making use of res ispa loquitor. Today, thanks to the evolution
of tort law, those same cases could be brought as claims for strict
liability, since exploding pop bottles would constitute defective
products. (Happily, of course, pop bottles rarely explode these days
thanks to advances in plastics and glass.)

Special Rules for Land Owners and Occupiers
An idiosyncratic aspect of the common law regards the standard of
care expected of owners or occupiers of real property. When it comes
to the liability for conditions of land and buildings, there are special
rules that dictate the standard of care.
These special rules only apply when the injury arises from a condition
of real property.
The phrase “real property” means land and anything built on the land
along with all fixtures. In property law, a “fixture” is something
attached to the real property. So an installed ceiling lamp is a fixture,
and thus part of the real property, while a floor lamp that can be
unplugged and repositioned is “chattel” – meaning property that is
not real property.
The special rules apply to land owners and occupiers because one does
not have to “own” the property outright to be liable for conditions
on the property. Someone who is in possession of the property – a
lessee, for example, can be liable in the same way as an owner.
The special rules apply only to conditions on the property. Note that
activities on the property, as opposed to conditions, are not covered by
the special rules. If an injury results because of something the land
owner/occupier is doing on the land, then the standard of care is that
of the reasonable person. But if the injury results from a condition of
the property – such as a rotted stair case or a knife-like edge on
handhold – then the special rules are engaged.
The key to how the special rules work is that they require a different
standard of care depending on the classification of the plaintiff – i.e.,
the person who enters the land.
The rules differ from jurisdiction to jurisdiction, so any restatement
of them will be highly imperfect. But what follows is a fairly standard

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conception of the traditional rules, ordered from the lowest duty to
the highest.
Undiscovered/Unanticipated Trespassers
A person is a trespasser if she or he intentionally enters upon
someone else’s land without permission (express or implied) or some
other privilege to do so. And if the land owner/occupier has no
reason to know of or anticipate the trespassers’ presence on the land,
then the trespasser is an “undiscovered/unanticipated” trespasser.
Such a person is owed no duty. That is to say, there is no way the
undiscovered/unanticipated trespasser can recover against a land
owner/occupier in a negligence action for an injury sustained because
of a condition of the real property.
Discovered/Anticipated Trespassers
A discovered/anticipated trespasser is a trespasser – someone
intentionally entering upon the land without privilege – who the land
owner/occupier either knows or expects to be on the land. If a land
owner knows that people habitually cut across the property as a
shortcut between two public places, then such people would be
anticipated trespassers. Even if the owner/occupier has not
witnessed trespassers in the past, if there is evidence on the property
that a reasonable person would understand as indicating trespassers –
such as a beaten path – then the owner/occupier will be considered
to have constructive notice of the trespassers.
Discovered/anticipated trespassers are owed a duty. In courts
following the traditional approach, there is a duty to warn of or
make safe any concealed artificial conditions which are capable
of causing death or serious bodily injury. This is lower than the
reasonable-care standard in three key ways: (1) only concealed or
hidden dangers – “traps” the courts sometimes say – trigger the duty;
(2) the duty only applies to artificial conditions, not natural
conditions; (3) the dangers must be very serious ones, such as those
risking life or limb. A good example is an abandoned mine shaft: it’s
hidden, it’s not a natural feature, and it’s potentially lethal. To obviate
such liability the owner/occupier can either remedy the condition or
create an effective warning – such as with posted signs.

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Note that some courts have scrapped the traditional approach in
favor of applying the ordinary reasonable-care standard for
discovered/anticipated trespassers.
Discovered/Anticipated Child Trespassers
An extra duty is placed on an owner/occupier in certain
circumstances when the known (or knowable) trespassers are
children. This rule is often called attractive nuisance doctrine,
although as we will see that name is misleading.
Where a land owner/occupier knows or should be aware of child
trespassers, that owner/occupier has a duty to remediate a
dangerous artificial condition on the land capable of causing
death or serious bodily injury, so long as the condition can be
remedied without imposing an unreasonable burden on the
owner/occupier.
The most important difference with regard to anticipated child
trespassers as opposed to their adult counterparts is that the danger
need not be concealed to trigger the duty. Another important
difference is that prominent warning signs do not offer an easy way
out of liability. These differences reflect that fact that children lack
good judgment and are often drawn to obviously dangerous things
rather than being revulsed by them.
The special treatment of children got its start in cases where children
trespassed onto railroad land, attracted to the idea of playing on a rail
turntable. A seminal case was Keffe v. Milwaukee & St. Paul Railway Co.,
21 Minn. 207 (Minn. 1875). A 7-year-old boy riding the turntable in
this way got his leg caught, crushing it and necessitating an
amputation. The court reasoned as follows:
“[T]he defendant knew that the turn-table,
when left unfastened, was easily revolved; that,
when left unfastened, it was very attractive, and
when put in motion by them, dangerous, to
young children: and knew also that many
children were in the habit of going upon it to
play. The defendant therefore knew that by
leaving this turn-table unfastened and

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unguarded, it was not merely inviting young
children to come upon the turn-table, but was
holding out an allurement, which, acting upon
the natural instincts by which such children are
controlled, drew them by those instincts into a
hidden danger; and having thus knowingly
allured them into a place of danger, without
their fault, (for it cannot blame them for not
resisting the temptation it has set before them,)
it was bound to use care to protect them from
the danger into which they were thus led, and
from which they could not be expected to
protect themselves.”

For this reason the doctrine was often referred to as the “turntable
doctrine.” A broader label, apparently traceable to the Keffe case, is
the “attractive nuisance doctrine.” The doctrine reflects a special
protectiveness courts often exhibit toward children. But not all
courts. The doctrine was rejected in Michigan in Ryan v. Towar, 128
Mich. 463 (Mich. 1901), a case in which an 8-year-old girl was caught
in a water wheel on an abandoned industrial site. When she began
screaming, her older sister came to her aid and was injured as well.
Justice Frank Hooker wrote for the Supreme Court of Michigan:
“There is no more lawless class than children,
and none more annoyingly resent an attempt to
prevent their trespasses. The average citizen has
learned that the surest way to be overrun by
children is to give them to understand that their
presence is distasteful.~ The remedy which the
law affords for the trifling trespasses of children
is inadequate. No one ever thinks of suing them,
and to attempt to remove a crowd of boys from
private premises by gently laying on of hands,
and using no more force than necessary to put
them off, would be a roaring farce, with all
honors to the juveniles. For a corporation with
an empty treasury, and overwhelmed with debt,
to be required to be to the expense of
preventing children from going across its lots to
school, lest it be said that it invited and licensed

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them to do so, is to our minds an unreasonable
proposition.”

Originally, attractive nuisance doctrine required – as its name
suggests – that the child be induced to trespass through attraction to
the dangerous condition itself, in order for the land owner/occupier’s
duty to be triggered. This is no longer generally the case. Although
courts often still call the doctrine “attractive nuisance,” the danger
need not attract the child in order for the land owner/occupier to
have a duty. For instance Michigan – which these days recognizes
attractive nuisance doctrine – has no requirement that the condition
lure the children onto the land. The court in Pippin v Atallah, 245
Mich App 136 (Mich. App. 2001) explains, “The term ‘attractive
nuisance’ is a misnomer (or historical leftover) because it is not
necessary, in order to maintain such an action, that the hazardous
condition be the reason that the children came onto the property.”
Licensees
The category of licensee is the default category of nontrespassers.
Someone who is not trespassing is a licensee unless for some reason
they qualify as an invitee (discussed below). In general, people on
private property with the consent of the owner/occupier are
licensees. Licensees include visitors to private homes, such as friends
and family. Ironically (and confusingly), people who come into your
home by way of a formal party invitation are not invitees; they are
licensees.
With regard to conditions on real property, an owner/occupier owes
to licensees a duty to warn of or try reasonably to make safe
concealed hazards that are known to the owner/occupier. This
is different from the duty to discovered/anticipated trespassers in
that to trigger a duty, the danger need not be artificial, nor does it
need to constitute a threat of serious bodily injury or death.
Invitees
Invitees are people who are allowed to come on land to conduct
business related to the owner/occupier’s business, or who are
members of the public on land that is held open to the general
public. Customers at the mall, visitors in a hospital, fans at a concert,

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and sunbathers in a park are all invitees. Some jurisdictions also
consider public employees such as police officers, firefighters, and
mail carriers to be invitees, even when in private homes, so long as
they are privileged to be there.
Invitees are owed the highest duty by land owners/occupiers.
When it comes to conditions of real property, invitees are owed a
duty to adequately warn of or render safe concealed hazards
plus to make a diligent effort to inspect for unknown dangers.
The key difference between licensees and invitees is that with
invitees, there is a requirement to affirmatively go out and look for
conditions that may be a hazard for the unwary. This makes sense if
you consider that invitees are generally persons from whom the
owner/occupier stands to make money. In cases where there is no
money to be made, such as with public spaces like parks, there is at
least a subtle cue that the space is one where visitors can feel entitled
to be there, as opposed to a private locale where they should feel as if
they are guests who are obliged to be a little more circumspect.
Case: Campbell v. Weathers
The following case makes use of the special rules for negligence of
land owners/occupiers and explores the boundaries of the definition
of “invitee.”

Campbell v. Weathers
Supreme Court of Kansas
March 8, 1941
153 Kan. 316. JOE CAMPBELL, Appellant, v. CLAUDE
WEATHERS, doing business as WEATHERS CIGAR STORE
AND LUNCH, THE FIRST NATIONAL BANK of
WICHITA, as Trustee of the Colar Sims Estate, and R. E.
BLACK, as Manager, etc., Appellees. No. 34,850.
Justice HUGO T. WEDELL:
This was an action against three defendants to recover damages
for personal injury. The demurrers of the defendants to

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plaintiff’s evidence were sustained and those rulings constitute
the sole basis of appeal.
The defendants were the lessee of a building, who operated a
cigar and lunch business, the owner of the building and the
owner’s manager of the building.
The building was located in the business section of the city of
Wichita, and at the southeast corner of an intersection. The
building faced the north. It had an entrance at the west front
corner and from the north near the northeast corner. A counter
was located near the front and across the building east and west.
Between the east end of the counter and the east wall of the
building was an opening which led to a hallway along the east
side of the building. The hallway led to a toilet which was
located toward the west end of the hall. The toilet was west of
the hallway. Immediately to the south of the portion of the
building occupied by the defendant lessee another tenant
operated a shoeshine parlor. There was an entrance to the
shoeshine parlor from the west. There was access from the
shoeshine parlor to the toilet and hallway by means of a door
into the toilet. There was a trap door in the floor of the hallway
approximately half way between the lunch counter of the
defendant lessee and the toilet room. The hallway was 29 or 31
inches in width. Plaintiff had been a customer of the defendant
lessee for a number of years. On Sunday morning, June 4, 1939,
between 8:30 and 9 o’clock, plaintiff entered the place of
business operated by the defendant lessee as a cigar and lunch
business. He spent probably fifteen or twenty minutes in the
front part of the building and then started for the toilet. He
stepped into the open trap door in the floor of the hallway,
broke his right arm and sustained some other injuries.
Other pertinent facts will be considered in connection with the
contentions of the respective parties.
We shall first consider the sufficiency of the evidence to take the
case to the jury on the question of lessee’s liability. Lessee
demurred to the evidence upon the ground it showed that if
plaintiff sustained an injury it was due to his own contributory
negligence and not the negligence of Weathers, the lessee.

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Appellant contends that demurrer raised only the question of his
contributory negligence. The contention is not good. The
demurrer was intended to raise, and did raise, also, the question
of the sufficiency of the evidence to show negligence on the part
of the lessee. It was so considered and ruled upon.
The first issue to be determined is the relationship between
plaintiff and the lessee. Was plaintiff a trespasser, a licensee or
an invitee? The answer must be found in the evidence. A part of
the answer is contained in the nature of the business the lessee
conducted. It is conceded lessee operated a business which was
open to the public. Lessee’s business was that of selling cigars
and lunches to the public. It was conceded in oral argument,
although the abstract does not reflect it, that the lessee also
operated a bar for the sale of beer, but that beer was not being
sold on Sunday, the day of the accident. Plaintiff had been a
customer of the lessee for a number of years. He resided in the
city of Wichita. He was a switchman for one of the railroads. He
stopped at the lessee’s place of business whenever he was in
town. He had used the hallway and toilet on numerous
occasions, whenever he was in town, and had never been
advised the toilet was not intended for public use. When he
entered lessee’s place of business the lessee and three of his
employees were present. He thought he had stated he was going
back to use the toilet, but he was not certain he had so stated.
None of the persons present heard the remark. He saw no signs
which warned him not to use the hallway or toilet. The hallway
was the direct route to the toilet. One of lessee’s employees
testified he had never been told by the lessee or anyone else that
the toilet was a private toilet. On that point the examination of
one of lessee’s employees discloses the following:
Q. Mr. Hodges, do you know or were you ever
told by Mr. Weathers or by Mr. Black or
anybody who purported to be the manager of
that building that that toilet was a private toilet?
A. No, sir.

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Q. Do you know whether or not it was used by
people other than the employees and the lessees
and lessors of that building?
A. Yes, sir.
Q. Well, was it used?
A. Yes, it was used by everybody, used by the
public.
Appellant insists the evidence discloses he was an invitee.
Appellee counters with the contention appellant was not an
invitee for the purpose of using the toilet. Appellee also urges
the evidence does not disclose appellant purchased anything on
this particular day and hence was not a customer on this
occasion.
The evidence disclosed appellant had been a regular customer of
the lessee for a number of years and that he had used the
hallway and toilet about every day he had been in town. He had
never seen any signs not to use the toilet and had never been
forbidden to use it. That the public had a general invitation to
be or to become lessee’s customers cannot be doubted. It
appears the trial court sustained the demurrer on the ground
appellant had received no specific invitation or express
permission to use the toilet on this particular occasion. Was a
specific invitation or permission necessary in this case? That
lessee was operating a lunch counter is conceded. No valid
reason is advanced by appellee for his contention that lessee was
not conducting a restaurant business within the ordinary
acceptation of that term. We think it would constitute undue
and unwarranted nicety of discrimination to say that a person
who operates a public lunch counter is not engaged in the
restaurant business. This appellant, a restaurant operator in the
city of Wichita, was required by statute to provide a water closet
for the accommodation of his guests. G. S. 1935, 36-111 and 36113, required that he furnish a public washroom, convenient
and of easy access to his guests. The word “toilet” might refer to
either a water closet or washroom. Appellant was an invitee not
only while in the front part of the place of business where the
lunch counter was located but while he was on his way to the

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toilet. He was an invitee at all times. Appellant had been a
regular customer of the lessee for a number of years. We think it
is clear appellant, in view of the evidence in the instant case, was
an invitee to use the toilet. The mere fact appellant had received
no special invitation or specific permission on this particular
occasion to use the toilet provided for guests or invitees did not
convert him into a mere licensee. The evidence is clear appellant
had used the hallway and toilet for a number of years and that it
was used by everybody.
Can we say, as a matter of law, in view of the record in this
particular case, appellant had no implied invitation to use the
toilet simply because he had not made an actual purchase before
he was injured? Assuming for the moment that it might be
necessary under some circumstances for a regular customer of
long standing to be an actual purchaser on the particular
occasion of his injury to constitute him an implied invitee to use
the toilet, does the evidence in the instant case compel such a
ruling on the demurrer? We think it does not.~
The writer cannot subscribe to the theory that a regular
customer of long standing is not an invitee to use toilet facilities
required by law to be provided by the operator of a restaurant,
simply because the customer had not actually made a purchase
on the particular occasion of his injury, prior to his injury. It
would seem doubtful whether such a doctrine could be applied
justly to regular customers of a business which the law does not
specifically require to be supplied with toilet facilities, but which
does so for the convenience or accommodation of its guests.~ It
is common knowledge that business concerns invest huge sums
of money in newspaper, radio and other mediums of advertising
in order to induce regular and prospective customers to frequent
their place of business and to examine their stocks of
merchandise. They do not contemplate a sale to every invitee.
They do hope to interest regular customers and cultivate
prospective customers. It is common knowledge that an open
door of a business place, without special invitation by
advertisement or otherwise, constitutes an invitation to the
public generally to enter.~ In the case of Kinsman v. Barton &

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Company, 141 Wash. 311, that court had occasion to determine
what constituted an invitee, and said:
“An invitee is one who is either expressly or
impliedly invited onto the premises of another
in connection with the business carried on by
that other. … If one goes into a store with the
view of then, or at some other time, doing some
business with the store, he is an invitee.”
[In] MacDonough v. Woolworth Co., 91 N.J.L. 677~ it was held:
“The implied invitation of the storekeeper is
broad enough to include one who enters a
general store with a vague purpose of buying if
she sees anything that strikes her fancy.”
Of course, if it appears a person had no intention of presently or
in the future becoming a customer he could not be held to be an
invitee, as there would be no basis for any thought of mutual
benefit.~
Did the lessee violate any duty to appellant, an invitee? The
specific negligence alleged was:
1. That they caused an opening to be made in
the middle of the dimly lighted hallway leading
to the toilet, knowing that the said hallway was
used by customers, employees and the general
public.
2. That they negligently failed to warn this
plaintiff of the hole in the said floor and of the
dangerous condition caused by the hole being
left open in the floor.
3. That they negligently failed to warn this
plaintiff of the insufficiently lighted and
darkened condition caused by the defendants in
the said hall. At the time the plaintiff entered
into the said hall, the defendants and their
agents knew well that the hole was not properly
lighted and that there was no lid on the hole
that this plaintiff stepped into, and that they, the
defendants, and their agents, negligently failed

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to warn this plaintiff of the condition of the said
floor.
It was also alleged the foregoing acts of negligence were directly
responsible for the injury sustained.
The trap door in the hallway was opened on the day before the
accident. It was opened in order to obtain ventilation
underneath the floor and in order to get relief from dampness
and the muddy ground, preparatory to reenforcing the floor. It
was left open on Sunday, the day of the accident, at the
suggestion of the lessee. The hallway was very narrow, only 29
or 31 inches in width. The trap door covered enough of the
floor so as to make it impossible or highly inconvenient for
persons to pass between the east side of the hole and the east
wall without walking sideways. That distance was between six
and eight inches, or perhaps one foot. On the morning of the
accident the hallway was dark or dimly lighted. There was an
electric light suspended from the ceiling, but it was not lighted at
the time of the injury. It appears, if appellant stated he was
going to the toilet, no one heard the statement. Appellant did
not know the trap door was open. He saw no signs to warn him
it was open and no one in person advised him concerning it.
The lessee previously had been expressly warned by one of his
own employees that he had almost fallen into the hole and that
it should be closed or someone would be injured and sue him.
The employee thought the lessee advised him to leave the hole
open. At any rate it was left open. It was the custom to clean up
on Sunday mornings and to throw trash into the hallway. After
appellant started for the toilet he passed the porter, who had a
broom in his hand. Owing to the lack of light, appellant could
see only the image of a pasteboard box on the floor of the
hallway. The hole could not be seen by reason of the box. It has
been held upon good authority that a storekeeper who places
racks of merchandise about a railing around a stairway to a
basement so as to obstruct the view of customers is negligent.
There was not sufficient room between the box and the east
wall to pass around the box. Appellant stepped over the box,
“very easily” and in doing so stepped into the hole, broke his
right arm and possibly sustained some other injuries. The

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pasteboard box was variously described as 20 inches in height,
16 to 18 inches in height, and approximately 14 to 16 inches
wide. In the case of Bass v. Hunt, 151 Kan. 740, the trial court
sustained a demurrer to plaintiff’s evidence in a case very similar
in principle. This court reversed the ruling, and held:
“It is the duty of a restaurant keeper to keep in a
reasonably safe condition the portions of his
establishment where his guests may be expected to
come and go, including a necessary water closet
and the passage thereto, and it cannot be said as a
matter of law there was no actionable
negligence in his failure to sufficiently light the
passageway or to warn a guest of an unguarded
stairway covered by a trap door which was not
closed.” (Emphasis supplied.)
We are unable to distinguish the Bass case from the instant case,
in principle.~
The lessee also contends the pasteboard box constituted a
warning~. Certainly we cannot say, as a matter of law, appellant
should have interpreted the existence of a pasteboard box of the
size mentioned, in view of other circumstances, as constituting a
barricade to an open hole in the floor immediately on the other
side of the box. Nor is there any evidence in the record the box
was intended to constitute a barricade.~
The order sustaining~ the demurrer of the lessee is reversed.

Questions to Ponder About Campbell v. Weathers
A. Do you think the ruling in this case will function to help business
patrons in the long run? On the plus side, it may encourage business
owners to make their premises safer. Business owners would likely
argue that the decision will hurt patrons in the long run, because it
will cause fewer restrooms to be made available. Which perspective
do you think is right? Or is it possible that businesses will not apprise
themselves of developments in the law of torts regarding dangerous
conditions, and thus the Campbell case will have no effect other than
to make it easier for injured patrons to recover?

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B. One defense to negligence – which is discussed in a later chapter –
is assumption of the risk. Suppose the business proprietor posted the
following sign:
Going to the restroom may be dangerous.
Patrons who choose to use the restroom
assume all risk of doing so.

What effect do you think this should have, if any? Assuming such a
sign could relieve all liability, would it be a good business decision to
post it?
C. Recall the discussion of gender and the reasonable person
standard above. In discussing women’s shopping and men’s drinking
and cigar smoking, does the Campbell opinion reveal sexist
stereotyping among 20th Century judges? Do you think a judge
would write the same things today? If not, do you think a judge might
think the same things today? Either way, do you think it matters to
the outcome of the case or the doctrine announced?
Some Problems About Duties of Land
Owners/Occupiers
A. Addison’s mother-in-law, Yelena, is beginning to descend the
stairs into Addison’s cellar. “Watch out, Yelena,” Addison calls.
“There is a pipe that sticks out of the wall on the right around the
middle of the stairs, down near your feet.” Yelena, in a hurry, does
not try to crowd to the left. She hits the pipe, trips, and falls down
the remainder of the stairs, sustaining injuries. It turns out that
Addison, who is a licensed plumber, could have easily fixed the pipe
with about a 20 minute’s work and $20 worth of supplies. But she
never bothered. Can Yelena recover from Addison in negligence?
B. Jayla owns and operates an independent hardware store
downtown. Sawyer, a customer, browses the decorative drawer pulls.
When he notices Jayla disappear into the back, Sawyer sneaks
through a door marked “No Admittance.” Sawyer, an amateur sleuth
who has been turned down several times for a private investigator’s
license because of a record of criminal convictions, is looking for
evidence of a price-fixing conspiracy he is convinced exists with
other hardware stores in town. He finds a shelf containing banker’s

234

boxes of documents. He starts to pull one out, and the entire shelf
collapses on top of him, injuring him badly. It turns out the kid Jayla
hired on a subminimum youth-training wage did not follow
directions putting the shelf together, leaving out several bolts and
bracket-supports. Can Sawyer recover from Jayla in negligence?
C. Gareth owns a 20,000-acre ranch out west where herds of buffalo
roam through a maze of badlands. Badlands are areas unsuitable for
agriculture and difficult to travel through that are characterized by
ravines, gullies, hoodoos, cliffs, and canyons. Gareth knows that
hunters often trek through his land to hunt deer and pheasants. One
geological formation, which Gareth and his ranch hands have come
to call Dead Man’s Drop, is a steep, narrow ravine in an otherwise
flat plain overgrown with tall prairie grass. At certain times of day,
the opening is all but invisible. It’s already injured 15 trespassers, two
fatally. Nonetheless, Gareth has posted no warning signs or done
anything else to remedy the danger. Twyla, a bow hunter looking for
bucks, is stalking through the grass silently while aiming and looking
to her side when – WHOOSH – she falls into the gap, sustaining
multiple bone fractures, torn ligaments, and other injuries. Can Twyla
recover from Gareth in negligence?
Case: Rowland v. Christian
Not all jurisdictions follow the special rules for owner/occupier
negligence for conditions of real property. In this case, California’s
high court expresses considerable contempt for the traditional rules
and decides to discard them in favor of the flexible and portable
reasonable-person standard.

Rowland v. Christian
Supreme Court of California
August 8, 1968
69 Cal. 2d 108. JAMES DAVIS ROWLAND, JR., Plaintiff and
Appellant, v. NANCY CHRISTIAN, Defendant and
Respondent. S. F. No. 22583. In Bank. Peters, J. Traynor, C. J.,
Tobriner, J., Mosk, J., and Sullivan, J., concurred. Burke, J.,
dissents. McComb, J., concurred.

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Justice RAYMOND E. PETERS:
Plaintiff appeals from a summary judgment for defendant
Nancy Christian in this personal injury action.
In his complaint plaintiff alleged that about November 1, 1963,
Miss Christian told the lessors of her apartment that the knob of
the cold water faucet on the bathroom basin was cracked and
should be replaced; that on November 30, 1963, plaintiff
entered the apartment at the invitation of Miss Christian; that he
was injured while using the bathroom fixtures, suffering severed
tendons and nerves of his right hand; and that he has incurred
medical and hospital expenses. He further alleged that the
bathroom fixtures were dangerous, that Miss Christian was
aware of the dangerous condition, and that his injuries were
proximately caused by the negligence of Miss Christian. Plaintiff
sought recovery of his medical and hospital expenses, loss of
wages, damage to his clothing, and $100,000 general damages. It
does not appear from the complaint whether the crack in the
faucet handle was obvious to an ordinary inspection or was
concealed.
Miss Christian filed an answer containing a general denial except
that she alleged that plaintiff was a social guest and admitted the
allegations that she had told the lessors that the faucet was
defective and that it should be replaced. Miss Christian also
alleged contributory negligence and assumption of the risk. In
connection with the defenses, she alleged that plaintiff had failed
to use his “eyesight” and knew of the condition of the premises.
Apart from these allegations, Miss Christian did not allege
whether the crack in the faucet handle was obvious or
concealed.
Miss Christian’s affidavit in support of the motion for summary
judgment alleged facts showing that plaintiff was a social guest
in her apartment when, as he was using the bathroom, the
porcelain handle of one of the water faucets broke in his hand
causing injuries to his hand and that plaintiff had used the
bathroom on a prior occasion. In opposition to the motion for
summary judgment, plaintiff filed an affidavit stating that
immediately prior to the accident he told Miss Christian that he

236

was going to use the bathroom facilities, that she had known for
two weeks prior to the accident that the faucet handle that
caused injury was cracked, that she warned the manager of the
building of the condition, that nothing was done to repair the
condition of the handle, that she did not say anything to plaintiff
as to the condition of the handle, and that when plaintiff turned
off the faucet the handle broke in his hands severing the
tendons and medial nerve in his right hand.
The summary judgment procedure is drastic and should be used
with caution so that it does not become a substitute for an open
trial.~ A summary judgment for defendant has been held
improper where his affidavits were conclusionary and did not
show that he was entitled to judgment and where the plaintiff
did not file any counteraffidavits.
In the instant case, Miss Christian’s affidavit and admissions
made by plaintiff show that plaintiff was a social guest and that
he suffered injury when the faucet handle broke; they do not
show that the faucet handle crack was obvious or even
nonconcealed. Without in any way contradicting her affidavit or
his own admissions, plaintiff at trial could establish that she was
aware of the condition and realized or should have realized that
it involved an unreasonable risk of harm to him, that defendant
should have expected that he would not discover the danger,
that she did not exercise reasonable care to eliminate the danger
or warn him of it, and that he did not know or have reason to
know of the danger. Plaintiff also could establish, without
contradicting Miss Christian’s affidavit or his admissions, that
the crack was not obvious and was concealed. Under the
circumstances, a summary judgment is proper in this case only
if, after proof of such facts, a judgment would be required as a
matter of law for Miss Christian. The record supports no such
conclusion.
Section 1714 of the Civil Code provides:
“Every one is responsible, not only for the
result of his willful acts, but also for an injury
occasioned to another by his want of ordinary
care or skill in the management of his property

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or person, except so far as the latter has,
willfully or by want of ordinary care, brought
the injury upon himself. … ”
This code section, which has been unchanged in our law since
1872, states a civil law and not a common law principle.
Nevertheless, some common law judges and commentators
have urged that the principle embodied in this code section
serves as the foundation of our negligence law. Thus in a
concurring opinion, Brett, M. R. in Heaven v. Pender (1883) 11
Q.B.D. 503, 509, states: “whenever 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.”
California cases have occasionally stated a similar view: “All
persons are required to use ordinary care to prevent others
being injured as the result of their conduct.” Although it is true
that some exceptions have been made to the general principle
that a person is liable for injuries caused by his failure to exercise
reasonable care in the circumstances, it is clear that in the
absence of statutory provision declaring an exception to the
fundamental principle enunciated by § 1714 of the Civil Code,
no such exception should be made unless clearly supported by
public policy.
A departure from this fundamental principle involves the
balancing of a number of considerations; the major ones are the
foreseeability of harm to the plaintiff, the degree of certainty
that the plaintiff suffered injury, the closeness of the connection
between the defendant’s conduct and the injury suffered, the
moral blame attached to the defendant’s conduct, the policy of
preventing future harm, the extent of the burden to the
defendant and consequences to the community of imposing a
duty to exercise care with resulting liability for breach, and the
availability, cost, and prevalence of insurance for the risk
involved.

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One of the areas where this court and other courts have
departed from the fundamental concept that a man is liable for
injuries caused by his carelessness is with regard to the liability
of a possessor of land for injuries to persons who have entered
upon that land. It has been suggested that the special rules
regarding liability of the possessor of land are due to historical
considerations stemming from the high place which land has
traditionally held in English and American thought, the
dominance and prestige of the landowning class in England
during the formative period of the rules governing the
possessor’s liability, and the heritage of feudalism.
The departure from the fundamental rule of liability for
negligence has been accomplished by classifying the plaintiff
either as a trespasser, licensee, or invitee and then adopting
special rules as to the duty owed by the possessor to each of the
classifications. Generally speaking a trespasser is a person who
enters or remains upon land of another without a privilege to do
so; a licensee is a person like a social guest who is not an invitee
and who is privileged to enter or remain upon land by virtue of
the possessor’s consent, and an invitee is a business visitor who
is invited or permitted to enter or remain on the land for a
purpose directly or indirectly connected with business dealings
between them.
Although the invitor owes the invitee a duty to exercise ordinary
care to avoid injuring him, the general rule is that a trespasser
and licensee or social guest are obliged to take the premises as
they find them insofar as any alleged defective condition thereon
may exist, and that the possessor of the land owes them only the
duty of refraining from wanton or willful injury. The ordinary
justification for the general rule severely restricting the
occupier’s liability to social guests is based on the theory 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.
An increasing regard for human safety has led to a retreat from
this position, and an exception to the general rule limiting

239

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. In an
apparent attempt to avoid the general rule limiting liability,
courts have broadly defined active operations, sometimes giving
the term a strained construction in cases involving dangers
known to the occupier.
Thus in Hansen v. Richey, 237 Cal.App.2d 475, 481, an action for
wrongful death of a drowned youth, the court held that liability
could be predicated not upon the maintenance of a dangerous
swimming pool but upon negligence “in the active conduct of a
party for a large number of youthful guests in the light of
knowledge of the dangerous pool.” Rather than characterizing
the finding of active negligence in Hansen v. Richey, supra, 237
Cal.App.2d 475, 481, as a strained construction of that term
perhaps the opinion should be characterized as “an ingenious
process of finding active negligence in addition to the known
dangerous condition, … ” (See, Witkin, Summary of Cal. Law
(1967 Supp.) Torts, § 255, pp. 535-536.) In Howard v. Howard,
186 Cal.App.2d 622, 625, where plaintiff was injured by slipping
on spilled grease, active negligence was found on the ground
that the defendant requested the plaintiff to enter the kitchen by
a route which he knew would be dangerous and defective and
that the defendant failed to warn her of the dangerous
condition. In Newman v. Fox West Coast Theatres, 86 Cal.App.2d
428, 431-433, the plaintiff suffered injuries when she slipped and
fell on a dirty washroom floor, and active negligence was found
on the ground that there was no water or foreign substances on
the washroom floor when plaintiff entered the theater, that the
manager of the theater was aware that a dangerous condition
was created after plaintiff’s entry, that the manager had time to
clean up the condition after learning of it, and that he did not do
so or warn plaintiff of the condition.
Another exception to the general rule limiting liability has been
recognized for cases where the occupier is aware of the
dangerous condition, the condition amounts to a concealed trap,
and the guest is unaware of the trap. In none of these cases,

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however, did the court impose liability on the basis of a
concealed trap; in some liability was found on another theory,
and in others the court concluded that there was no trap. A trap
has been defined as a “concealed” danger, a danger with a
deceptive appearance of safety. It has also been defined as
something akin to a spring gun or steel trap. In the latter case it
is pointed out that the lack of definiteness in the application of
the term “trap” to any other situation makes its use
argumentative and unsatisfactory.
The cases dealing with the active negligence and the trap
exceptions are indicative of the subtleties and confusion which
have resulted from application of the common law principles
governing the liability of the possessor of land. Similar
confusion and complexity exist as to the definitions of
trespasser, licensee, and invitee.
In refusing to adopt the rules relating to the liability of a
possessor of land for the law of admiralty, the United States
Supreme Court stated:
“The distinctions which the common law draws
between licensee and invitee were inherited
from a culture deeply rooted to the land, a
culture which traced many of its standards to a
heritage of feudalism. In an effort to do justice
in an industrialized urban society, with its
complex economic and individual relationships,
modern common-law courts have found it
necessary to formulate increasingly subtle verbal
refinements, to create subclassifications among
traditional common-law categories, and to
delineate fine gradations in the standards of care
which the landowner owes to each. Yet even
within a single jurisdiction, the classifications
and subclassifications bred by the common law
have produced confusion and conflict. As new
distinctions have been spawned, older ones
have become obscured. Through this semantic
morass the common law has moved, unevenly
and with hesitation, towards ‘imposing on

241

owners and occupiers a single duty of
reasonable care in all the circumstances.’”
The courts of this state have also recognized the failings of the
common law rules relating to the liability of the owner and
occupier of land. In refusing to apply the law of invitees,
licensees, and trespassers to determine the liability of an
independent contractor hired by the occupier, we pointed out
that application of those rules was difficult and often arbitrary.
In refusing to apply the common law rules to a known
trespasser on an automobile, the common law rules were
characterized as “unrealistic, arbitrary, and inelastic,” and it was
pointed out that exceedingly fine distinctions had been
developed resulting in confusion and that many recent cases
have in fact applied the general doctrine of negligence embodied
in § 1714 of the Civil Code rather than the rigid common law
categories test.~
There is another fundamental objection to the approach to the
question of the possessor’s liability on the basis of the common
law distinctions based upon the status of the injured party as a
trespasser, licensee, or invitee. Complexity can be borne and
confusion remedied where the underlying principles governing
liability are based upon proper considerations. Whatever may
have been the historical justifications for the common law
distinctions, it is clear that those distinctions are not justified in
the light of our modern society and that the complexity and
confusion which has arisen is not due to difficulty in applying
the original common law rules – they are all too easy to apply in
their original formulation – but is due to the attempts to apply
just rules in our modern society within the ancient terminology.~
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

242

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.
It bears repetition that the basic policy of this state set forth by
the Legislature in § 1714 of the Civil Code is that everyone is
responsible for an injury caused to another by his want of
ordinary care or skill in the management of his property. The
factors which may in particular cases warrant departure from
this fundamental principle do not warrant the wholesale
immunities resulting from the common law classifications, and
we are satisfied that continued adherence to the common law
distinctions can only lead to injustice or, if we are to avoid
injustice, further fictions with the resulting complexity and
confusion. We decline to follow and perpetuate such rigid
classifications. The proper test to be applied to the liability of
the possessor of land in accordance with § 1714 of the Civil
Code is whether in the management of his property he has acted
as a reasonable man in view of the probability of injury to
others, and, although the plaintiff’s status as a trespasser,
licensee, or invitee may in the light of the facts giving rise to
such status have some bearing on the question of liability, the
status is not determinative.
Once the ancient concepts as to the liability of the occupier of
land are stripped away, the status of the plaintiff relegated to its
proper place in determining such liability, and ordinary
principles of negligence applied, the result in the instant case
presents no substantial difficulties. As we have seen, when we
view the matters presented on the motion for summary
judgment as we must, we must assume defendant Miss Christian
was aware that the faucet handle was defective and dangerous,
that the defect was not obvious, and that plaintiff was about to
come in contact with the defective condition, and under the
undisputed facts she neither remedied the condition nor warned
plaintiff of it. Where the occupier of land is aware of a
concealed condition involving in the absence of precautions an
unreasonable risk of harm to those coming in contact with it
and is aware that a person on the premises is about to come in

243

contact with it, the trier of fact can reasonably conclude that a
failure to warn or to repair the condition constitutes 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
special precautions when he comes in contact with it.
It may be noted that by carving further exceptions out of the
traditional rules relating to the liability to licensees or social
guests, other jurisdictions reach the same result, that by
continuing to adhere to the strained construction of active
negligence or possibly, by applying the trap doctrine the result
would be reached on the basis of some California precedents~.
However, to approach the problem in these manners would
only add to the confusion, complexity, and fictions which have
resulted from the common law distinctions.
The judgment is reversed.
Justice LOUIS H. BURKE, dissenting:
I 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 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.~
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.

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I would affirm the judgment for defendant.

Some Questions to Ponder About Rowland v. Christian
A. Is the flexibility of the reasonable person standard a strength? Or
is it a necessary evil for the great universe of situations for which we
cannot hope to create specific rules, such as those traditionally used
for conditions on real property?
B. Justice Burke’s dissent suggests that such changes in the law are
better made by the legislature so that “all affected interests can be
heard” and so that the law can “uniform standards and guidelines for
the future.” But note that the “learning, wisdom, and experience of
the past” that Justice Burke salutes – what he says is reflected in the
traditional rules – are the product of judicial, not legislative, effort.
Perhaps the dissent can be characterized as saying, in essence, that
the judiciary has done such a great job developing these special rules,
only the legislature should be trusted to change them. Is that a fair
characterization? Is there any way to resolve the apparent tension in
Justice Burke’s reasoning?
Statute: California Civil Code § 847

California Civil Code § 847
Added by Stats. 1985, c. 1541 § 1.
The CALIFORNIA CODE:
(a) An owner, including, but not limited to, a public entity, as
defined in Section 811.2 of the Government Code, of any estate
or any other interest in real property, whether possessory or
nonpossessory, shall not be liable to any person for any injury or
death that occurs upon that property during the course of or
after the commission of any of the felonies set forth in
subdivision (b) by the injured or deceased person.
(b) The felonies to which the provisions of this section apply are
the following: (1) Murder or voluntary manslaughter; (2)
mayhem; (3) rape; (4) sodomy by force, violence, duress,
menace, or threat of great bodily harm; (5) oral copulation by
force, violence, duress, menace, or threat of great bodily harm;
(6) lewd acts on a child under the age of 14 years; (7) any felony

245

punishable by death or imprisonment in the state prison for life;
(8) any other felony in which the defendant inflicts great bodily
injury on any person, other than an accomplice, or any felony in
which the defendant uses a firearm; (9) attempted murder; (10)
assault with intent to commit rape or robbery; (11) assault with a
deadly weapon or instrument on a peace officer; (12) assault by
a life prisoner on a noninmate; (13) assault with a deadly weapon
by an inmate; (14) arson; (15) exploding a destructive device or
any explosive with intent to injure; (16) exploding a destructive
device or any explosive causing great bodily injury; (17)
exploding a destructive device or any explosive with intent to
murder; (18) burglary; (19) robbery; (20) kidnapping; (21) taking
of a hostage by an inmate of a state prison; (22) any felony in
which the defendant personally used a dangerous or deadly
weapon; (23) selling, furnishing, administering, or providing
heroin, cocaine, or phencyclidine (PCP) to a minor; (24) grand
theft as defined in Sections 487 and 487a of the Penal Code; and
(25) any attempt to commit a crime listed in this subdivision
other than an assault.
(c) The limitation on liability conferred by this section arises at
the moment the injured or deceased person commences the
felony or attempted felony and extends to the moment the
injured or deceased person is no longer upon the property.
(d) The limitation on liability conferred by this section applies
only when the injured or deceased person’s conduct in
furtherance of the commission of a felony specified in
subdivision (b) proximately or legally causes the injury or death.
(e) The limitation on liability conferred by this section arises
only upon the charge of a felony listed in subdivision (b) and the
subsequent conviction of that felony or a lesser included felony
or misdemeanor arising from a charge of a felony listed in
subdivision (b). During the pendency of any such criminal
action, a civil action alleging this liability shall be abated and the
statute of limitations on the civil cause of action shall be tolled.
(f) This section does not limit the liability of an owner or an
owner’s agent which otherwise exists for willful, wanton, or

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criminal conduct, or for willful or malicious failure to guard or
warn against a dangerous condition, use, structure, or activity.
(g) The limitation on liability provided by this section shall be in
addition to any other available defense.
A COMMENTARY on the statute by the Supreme Court of
California:
[From Calvillo-Silva v. Home Grocery, 19 Cal. 4th 714 (Cal. 1998):]
Section 847 of the Civil Code provides that in certain
circumstances an owner of any estate or other interest in real
property shall not be liable for injuries that occur upon the
property during or after the injured person’s commission of any
one of 25 felonies listed in the statute.~
The general policy of California with respect to tort liability is
set forth in § 1714. For well over 100 years, § 1714 has provided
in relevant part: “Every one is responsible, not only for the
result of his willful acts, but also for an injury occasioned to
another by his want of ordinary care or skill in the management
of his property or person, except so far as the latter has, willfully
or by want of ordinary care, brought the injury upon himself.”
Three decades ago, Rowland v. Christian (1968) 69 Cal. 2d 108
relied upon the basic policy articulated in § 1714 to hold that a
possessor of land generally owes a duty of care to all persons
who enter the possessor’s premises, whether the person is an
invitee (business visitor), a licensee (social guest), or a
trespasser.~
When the Legislature considered enactment of § 847 in 1985, it
heard arguments from proponents of the measure that
immunity was needed “to address the increasing number of
attempts by criminals injured in the course of their crimes to
demand compensation from their intended victims” and to
provide a means to “facilitate the early dismissal of lawsuits of
this type.” In evaluating the matter, the Legislature specifically
considered two controversial cases in which plaintiffs had
sought substantial sums for injuries they incurred while
trespassing on the property of others. In one case involving
public property, a plaintiff sued a school district for $3 million

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after he fell through a skylight during an attempt to illegally
remove floodlights from the roof of a school gymnasium. The
plaintiff, who was rendered a quadriplegic from the fall,
obtained a settlement of $260,000 plus monthly payments of
$1,200 for life. In another case, a motorcycle thief who
trespassed and went joyriding across a farmer’s field received
nearly $500,000 in damages from the farmer for injuries he
sustained after hitting a pothole in the field.~ The bill to enact
§ 847 was viewed as proposing a partial reversal of Rowland v.
Christian, which in effect had permitted such lawsuits to be
maintained. As noted by various legislative committees, the
sentiment providing the impetus for the legislation was reflected
in the following statements of the bill’s author: “[W]hatever may
be said in defense of the alleged right of a trespasser to sue a
landowner for the trespasser’s injuries sustained while
trespassing, there is almost nothing to be said on behalf of the
thief, a cattle rustler or other felon who is injured in the course
of his felony. Such a wrongdoer should not be allowed by the
law to add still more injury to insult.”~

Some Questions to Ponder About California Civil Code § 847
A. What effect would § 847 have on a plaintiff who was injured while
on property committing attempted voluntary manslaughter, which is
a crime in California. Look at subsection (b) and consider provisions
(1), (9) and (25) together. Is a person convicted of attempted
voluntary manslaughter disallowed recovery in negligence? What do
you think the legislature intended? Why do think they included (1),
(9), and (25) as they did? Given (1) and (25), what would be the point
of (9)?
B. Why do you think the legislature stopped short of completely
overturning Rowland by reinstating the traditional common law rules
that disallow any recovery in negligence for an unknown trespasser?
C. How do you think it came to pass that the would-be thief who fell
through a skylight received a settlement for more than a quarter
million dollars? Notice that this was not a court-entered judgment,
but was instead a settlement. What circumstances can you think of
that might have led to this result?

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249

7. Actual Causation
“If we could fly out of that window hand in hand,
hover over this great city, gently remove the roofs,
and peep in at the queer things which are going on,
the strange coincidences, the plannings, the crosspurposes, the wonderful chains of events, working
through generations, and leading to the most outré
results, it would make all fiction with its
conventionalities and foreseen conclusions most stale
and unprofitable.”
– Sherlock Holmes, “A Case of Identity,” by Arthur
Conan Doyle, 1892

Introduction
The chapter does double duty. Actual causation is not just an element
of negligence, it is an issue in torts generally, including with strict
liability, battery, trespass to land, etc. So you will learn the concepts
here, in the context of negligence, but keep in mind that they are
generally applicable throughout the landscape of tort law. (Your
introductory course in criminal law may cover actual causation as
well. The essential concept there is the same, although the
ramifications can be quite distinct.)
You may find that actual causation is the simplest element to
understand. And, in many cases, it is also the easiest to prove at trial.
In other cases, however, showing actual causation can be the most
perplexing challenge the plaintiff will face.
The requirement of actual causation is simply that there must be a
cause-and-effect relationship between the defendant’s conduct and
the plaintiff’s injury. The concept of breaching a duty of care is an
almost endless jurisprudential puzzle. It requires real wrangling.
Actual causation, by contrast, is almost self-explanatory. As we will
see in this chapter, however, there are a few complications – some of
them quite surprising – that bear some scrutiny. Nonetheless, the

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relative simplicity of the concept means that there is considerably less
to say about it.
When actual causation presents a live issue in a case, it is usually a
factual matter rather than a legal one. That is, the issue is usually
something to be resolved with evidence, witnesses, and logical
thinking. The first case in this chapter, Beswick v. CareStat, presents a
fascinating vehicle for thinking about issues of proving actual
causation by a preponderance of the evidence.
Next are some complications, considered under the label of
“multiplicity issues,” that come about when there are multiple parties
that could be said to be responsible, yet who could slip out of liability
because of some seemingly paradoxical results that come from strict
application of the actual-causation requirement.

The But-For Test
Here is 95% of the law of actual causation: If the injury would not
have occurred but for the defendant’s breach of the duty of care,
then actual causation is satisfied; if not, then not. That is called the
“but for” test. You simply ask, “But for the defendant’s breach of the
duty of care, would the injury have occurred?”
Now, you can ask same the question without using the words “but
for.” (E.g., “Absent the defendant’s accused conduct, would the
injury have occurred anyway?”) But the words used by all the courts
and all the learned treatises are “but for.” Law, in general, is filled
with long phrases, big words, counterintuitive terms, and numerical
code provisions – not to mention a heavy helping of Latin. So it may
come as something of a surprise that the lynchpin of actual causation
comes down to a test named with two words of three letters each
that mean exactly what they sound like they mean: “but for.”
Moreover, the term is universal. Everyone calls it the “but for” test,
even a law-school-dean-turned-justice writing for a unanimous U.S.
Supreme Court. See Fox v. Vice, __ U.S. __, 131 S.Ct. 2205, 2215
(2011) (Justice Kagan, discussing the “but-for test” in the context of
civil rights claims under 42 U.S.C. § 1988).

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Actual Causation vs. Proximate Causation
There are two distinct concepts within the umbrella of “causation” in
torts. One is actual causation, the subject of this chapter. The other is
proximate causation, the subject of the next. Since actual causation
and proximate causation are conceptually distinct, this book treats
them as separate elements. But many writers will lump them together
as “causation.” Thus, distinguishing the concepts from one another is
the first step in understanding either one.
Actual causation is a matter of strict, logical, cause-and-effect
relationships. Proximate causation – where proximate means “close”
– is a judgment call about how direct or attenuated the cause-andeffect relationship is, and whether it is close enough for liability.
This example will help you see the difference. Suppose you drive a
car carelessly and run over your neighbor’s mailbox. Your neighbor,
sitting on her front porch, has seen the whole thing. Bursting out of
the car, you put your hands on your hips and say, with indignity, “My
mother and father caused this to happen.” Your neighbor screws up
her eyebrows. “What on earth are you talking about?” she says. You
answer, “My mother and father got together and they, you know,
caused me to exist. So they caused this to happen to your mailbox.
I’m so sorry.”
In such a case it would be absolutely undeniably true that, as a strict
matter of the logic of cause-and-effect, you mother and father caused
the accident. But, of course, offering this as some kind of explanation
for what happened to the mailbox is silly. The tension here is the
difference between actual causation and proximate causation. It is
true that your mother and father caused the accident in the sense of
actual causation. But your mother and father did not cause the accident
in the sense of proximate causation.
In everyday, non-legal English, when we use the word “caused,” we
are talking about some combination of actual causation and
proximate causation. Most of the time, there is no need to separate
out the concepts. But when it comes to legal analysis in torts, we
need to specify exactly what we are talking about because, as you will
see, the two concepts implicate entirely different sets of concerns.

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Some Notes on the Terminology of Causation
A key stumbling block in learning actual causation is the vocabulary
used to talk about it. Ironically, while the test for actual causation is
easy, and while it is represented by a pithy, descriptive label with
consistent usage – “but for” – the same cannot be said for the
terminology used to talk about actual causation itself, or that of its
neighboring prima facie element, proximate causation. Be on guard.
The labels are myriad, confusing, and used inconsistently by lawyers
and judges alike.
Actual Causation’s Other Labels: Causation-in-Fact,
Factual Causation, and More
What we are calling “actual causation” in this book goes by different
names.
It is not enough to tell you that we will use the term “actual
causation” in this book, and leave it at that. You have to learn the
other terms, and how they are potentially confusing, so that you will
be able to read and understand cases, briefs, and other legal
documents no matter whom they are written by.
“Actual causation” is also called “causation-in-fact,” “factual
causation,” and “direct causation.” The term “causation-in-fact”
actually appears to be the most commonly used term, with “actual
causation,” being the second most common.
We are using “actual causation” in this book, even though it comes in
second place in frequency, because it is the most apt and least
confusing term of those in common use. The potential problem with
calling the requirement “causation-in-fact” or “factual causation” is
that it makes it sound like it is not a legal concept, but is instead just
something for the jury to decide based only on factual evidence. That
perception would be mistaken, however. Actual causation is a judgerendered legal doctrine, and the law of actual causation is applied,
clarified, and evolved by judges and appellate courts. So “factual
causation” is actually quite “legal.”
No doubt the commonality of the term “causation-in-fact” owes to
the fact that, in practice, that the actual causation element of the

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plaintiff’s case often presents only fact issues for the jury and leaves
no questions that need to be decided by the judge. But that is not
because actual causation is not legal, is it is only because the legal
doctrine on actual causation is crystal clear in nearly all cases. That is
to say, in the garden variety negligence case, all open questions with
regard to actual causation will turn on how facts are interpreted and
how the factfinder perceives the credibility of witnesses. The parties
will not typically present the judge with conflicting interpretations of
the law of actual causation, but will instead agree to use standard jury
instructions on actual causation.
While we are on the subject of the tendency to call actual causation
“factual causation,” we should note that proximate causation is
sometimes called “legal causation.” The reasons for this are corollary
to the prevalence of “factual causation” and “causation-in-fact” for
actual causation. If you put the terms together, calling actual
causation “factual causation” and proximate causation “legal
causation,” it sounds as if they are the factual and legal sides to a
unified question of “causation.” But that’s not accurate. Actual
causation and proximate causation are two conceptually separate
requirements of the prima facie case for negligence, both of which
involve the application of law to facts. Both implicate legal questions
and both implicate factual issues. So, to avoid headscratchers like
talking about the “law of causation-in-fact” or the “facts needed to
show legal causation,” we will stick to the terms “actual causation”
and “proximate causation.”
Now, there is another label for actual causation that is more
confusing than any of the others by an order of magnitude.
Sometimes, reported opinions will use the label “proximate
causation” to refer to actual causation. Courts frequently say that the
plaintiff cannot prove that something is the “proximate cause” of
something else, when what they are talking about is failure to show
actual causation. You will find an example in the Beswick case
immediately below. Courts probably do this because they are lumping
the concepts of actual causation and proximate causation together,
but then instead of calling the amalgam “causation,” they refer to it as
“proximate causation.” In such cases, you can mentally translate the

254

phrase as “causation, which includes a requirement that the causation
be proximate.”
These complications over terminology seem like needless headaches.
You might think that a better casebook would have gone through all
the cases and used bracketed insertions to make all the terms
consistent. Yet that would be doing students a serious disservice. In
the real world, the terminology is all over the place. So you might as
well learn your way around it now.
For good or for bad, these sorts of lexicological tangles are part and
parcel of our common law system. Using any of these terms –
including “proximate causation” – to discuss actual causation cannot
be called “wrong.” These usages lead to confusion, yes, but they are
not actually incorrect. Because court opinions are built by using
various other court opinions as precedent, the body of common law
exists as a web of interconnected nodes unorganized by any
centralized authority. Some courts see one element of causation
where other courts see two. Among the courts, different names
spring up, and differences persist both out of a kind of linguistic drift
and because of stubborn disagreement about which terms are best.
Check-Your-Understanding Questions About Causation
Terminology
A. A court says, “The plaintiff cannot prove causation, in fact,
because the plaintiff’s injury is only tenuously and indirectly
connected with the defendant’s action.” What concept of causation is
the court talking about?
B. A court says, “The plaintiff’s case fails for want of proximate
causation since the plaintiff’s injuries would have happened
regardless of the alleged negligent conduct of the defendant.” What
concept of causation is the court talking about?
Think “A” Not “The”
The most important conceptual aspect of the law of causation for
you to understand is that an injury can have more than one actual
cause. Do not think in terms of whether some action is “the cause”

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of an injury, instead ask whether the action is “a cause.” This applies
both to actual causation and proximate causation.
There is a tendency – perhaps endemic to human cognition – to want
to find the factor or the person who is to blame. This is reflected in
the question, “Who really is to blame?” (That phrase, in quotes, gets
299,000 hits on Google.) Clearly many people think this way when
considering issues of responsibility. Tort law, however, does not. In
reality, there are a nearly limitless number of causes for every event.
And every event may have a nearly limitless number of effects. Tort
law recognizes this, and thus actual causation doctrine only requires
that there be a logical, actual cause-and-effect relationship between
the alleged breach of the duty of care and the plaintiff’s injury. If
more than one breach of the duty of care was an actual cause of the
plaintiff’s injury, then the plaintiff can separately establish the
element of actual causation as to each and every such breach,
including against an unlimited number of defendants.

Example: Leadfoot to Liver Lobe – A leadfoot driver
shoots through a suburban intersection at 90 miles per hour.
She hits a driver making a left turn who is texting instead of
looking ahead. The vectors of the colliding masses of
automobile wreckage converge to eject a spray of debris at a
gasoline tanker parked nearby. The tank is structurally weak
because of improper welds – welds that would have been
fixed except that they were missed by a safety inspector. The
welds burst and the spilling mass of gasoline erupts into
flames near the plaintiff. While not seriously hurt, the plaintiff
is nonetheless whisked to the hospital for observation where
he is x-rayed. The radiologist misreads the film and counsels
an unnecessary surgery. During that surgery, an unwashed
scalpel, supplied by the hospital, is handed to an unobservant
surgeon by an unobservant nurse. Either the surgeon or the
nurse could have seen with a mere glance that the scalpel was
covered with blood before it got anywhere near the patient’s
skin. Upon incision, the dirty scalpel transmits a flotilla of
microbial pathogens to the plaintiff. Those pathogens
precipitate a case of sepsis, eventually resulting in the plaintiff

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losing the left lobe of his liver. Who actually caused the
accident? We apply the but-for test, and we must conclude
that the harm befalling the plaintiff would not have occurred
but for the negligent conduct of the leadfoot, the texter, the
welder, the inspector, the radiologist, the hospital, the nurse,
and the surgeon. Each one represents a but-for cause. Every
single one can be held liable. The plaintiff can sue one, some,
or all. It’s entirely the plaintiff’s choice.

Proof and Preponderance
Like all elements of the prima facie case, the element of actual
causation must be proved by a preponderance of the evidence. That
is, it must be shown that it was more likely than not that the injury
would not have occurred but for the defendant’s breach of the duty
of care. Where actual causation is an issue in a case, it is meeting this
burden through the presentation of evidence to the jury that often
poses the biggest challenge to the plaintiff.
Case: Beswick v. CareStat
The following case provides a rich set of facts to consider issues of
actual causation. Note that the court in this case uses the phrase
“proximate causation” to denote its discussion of actual causation
questions. (See “Some Notes on the Terminology of Actual
Causation,” above.)

Beswick v. CareStat
United States District Court for the Eastern District of Pennsylvania
December 6, 2001
185 F.Supp.2d 418. No. 00-1304. Reported as “Beswick v. City
of Philadelphia.” Ralph Raymond BESWICK, et al. v. CITY OF
PHILADELPHIA, et al. Civil Action No. 00-1304.
Chief Judge JAMES T. GILES:
I. INTRODUCTION
Ralph Raymond Beswick, Jr. and Rose Wiegand, CoAdministrators of the Estate of Ralph Richard Beswick, Sr.,
bring a constitutional claim pursuant to 42 U.S.C. § 1983 against

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the City of Philadelphia (“City”) and its former 911 call-taker,
Julie Rodriguez, and, asserting pendent jurisdiction, bring state
law negligence claims against Julie Rodriguez, and Father and
Son Transport Leasing Inc., d/b/a CareStat Ambulance and
Invalid Coach Transportation, Inc. (“CareStat”), a private
ambulance service, its record owner, Slawomir Cieloszcyk, a
purported owner and manager, Gregory Sverdlev, and two
CareStat employees, Ruslan Ilehuk and Ivan Tkach (collectively
“CareStat defendants”).
Before the court are four Motions for Summary Judgment filed
by:~ the CareStat defendants, for alleged failure to establish
proximate cause;~ and~ Tkach~ and Ilehuk, on the grounds
that~ there is no competent evidence supporting the claim of
Tkach and Ilehuk’s employee negligence~ .
For the reasons that follow, the City’s motion is granted, the
CareStat defendants’ motions are denied, and the motions of
Sverdlev, Tkach, and Ilehuk are denied.
II. FACTUAL BACKGROUND
Plaintiffs’ claims all arise from the death of Ralph Richard
Beswick, Sr. on February 11, 2000.~
Consistent with the review standards applicable to motions for
summary judgment, Fed.R.Civ.P. 56(c), the alleged facts, viewed
in the light most favorable to the plaintiffs, follow.
A. The Events of February 11, 2000
On the evening of February 11, 2000, Ralph Richard Beswick,
Sr. collapsed on the dining room floor of the South Kensington
home that he and Wiegand had shared for 23 years. From the
living room where she had been watching television, Wiegand
heard the “thump” of Beswick falling and went to him.There
is some discrepancy in the record as to whether Wiegand went
to Beswick immediately after he had fallen, or if some minutes
had passed before she realized he had fallen. For the purposes
of summary judgment, this court must assume that Wiegand
went to him straightaway, as she indicated in her police
statement taken eleven days after Beswick’s death. Upon

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entering the kitchen and finding Beswick lying prone on the
floor, Wiegand immediately dialed the City’s medical emergency
response number, 911, and told the answering call-taker, Julie
Rodriguez, that Beswick had fallen and needed urgent
assistance, and requested an ambulance. Rodriguez asked if
Beswick was breathing. Wiegand responded that he was.
Without obtaining any further information, Rodriguez told
Wiegand that “somebody” was “on the way.”
Fire Department regulations require 911 operators to refer all
emergency medical calls to the Fire Department, which then
dispatches Fire Rescue Units appropriately equipped and staffed
to respond to medical emergencies. The mechanical protocol of
the job of 911 call-taker requires that the call be transferred
immediately to the dispatcher upon termination of the
emergency call. The last step of the mechanical protocol of the
call-taker job is to punch a sequential button on a console to
connect the dispatcher and transmit the acquired information
from the caller. The dispatcher forwards the call to the Rescue
Unit closest to the response site.
Instead of following established procedure, which would have
continued the process to trigger the Rescue Unit’s response,
Rodriguez abandoned protocol and used a telephone located
next to her console to call a private ambulance company,
CareStat, to see if it could respond to the Wiegand call.
Rodriguez, without the knowledge of the City, had recently
begun working for CareStat as a dispatcher in her off hours, and
had a secret deal with CareStat to refer to it all calls received in
her City 911 capacity that she believed CareStat could handle.
Under the City’s protocol, Rodriguez was required to treat all
911 calls as emergencies requiring the City’s Rescue Unit
response. She had no discretion to act otherwise.
Immediately after speaking with Wiegand, Rodriguez telephoned
Slawomir Cieloszcyk (also known as “Slavik”), the owner and
dispatcher of CareStat. Upon telling Cieloszcyk that Ralph
Beswick, Sr. was age 65 and unconscious from a fall, Rodriguez
asked how long it would take CareStat to get to the Beswick
home. Neither Rodriguez nor Cieloszcyk knew that the 911 call

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was, in fact, a situation other than an emergency, such as a heart
attack or other serious medical event. Cieloszcyk estimated a
response time of fifteen minutes. He ended the conversation by
saying, “We’re on the way.”
Arguably, corruptly, in violation of Pennsylvania’s statutory
requirements applicable to private ambulances, Cieloszcyk
undertook a response to a medical situation to which CareStat
was not authorized to respond. All 911 calls are assumed to be
medical emergencies unless and until actual response and
evaluation by the City Fire Department might determine
otherwise. CareStat had no permission from the City to use 911
call-taker Rodriguez to refer calls to it and knew that the 911 call
was being diverted from the City’s established response system.
Under these circumstances, Cieloszcyk nevertheless gave the
Beswick response assignment to employees Ilehuk and Tkach,
neither of whom had completed the requisite training to become
a licensed EMT or paramedic. Ilehuk and Tkach, having the
same knowledge as Cieloszcyk, including the deal with
Rodriguez to compromise her City 911 job responsibilities,
accepted the call and set out for the Beswick residence.
Ten minutes after the first 911 call had been made, because
there was yet no emergency vehicle at the Beswick home,
Wiegand’s sister placed another 911 call at 8:02 p.m. to make
sure that the City’s rescue services had already been dispatched.
This call also happened to have been received and handled by
Rodriguez. Despite this second urgent call, Rodriguez did not
punch it over to the City’s emergency dispatch system. She
called CareStat again, seeking assurance that its ambulance
dispatched would arrive soon. Cieloszcyk assured Rodriguez
that the CareStat ambulance was on the way as he had promised
her.
Because an emergency equipped unit still had not arrived,
Wiegand called 911 a third time. The third call came to a calltaker other than Rodriguez. He followed all Fire Department
procedures and within a very short time period a City Fire
Department Rescue Unit arrived at the Beswick home.
Rodriguez became aware of the third Wiegand call. She

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promptly called Cieloszcyk at CareStat and told him that a City
paramedic unit was responding to the Beswick home, and
requested that he hide her involvement in the misdirecting of
the 911 calls. By the time that the CareStat ambulance arrived,
the Fire Rescue Unit had already removed Beswick from the
home. It was then that the Beswick family realized that the 911
call-taker had caused a private ambulance to attempt to respond
to their emergency call, and that it was ill-equipped to have dealt
with the Beswick medical emergency had it arrived earlier.
B. The Delay in Response to Beswick because of Defendants’
Actions
The first emergency telephone call concerning Beswick was
received by Rodriguez at the Fire Command Center (“FCC”) at
19:53:41. The second call, placed by Wiegand’s sister, was
received by Rodriguez at 20:02:54. The third Wiegand call was
received at the FCC by dispatcher Jose Zayes at 20:04:57, and
the City Fire Department response was immediately dispatched.
Fire Battalion Chief William C. Schweizer confirmed that at the
time Rodriguez received the first call at 19:53:41, Medic Unit
No. 2 would have been available to respond from its base at
Kensington and Castor, which was within several minutes of the
Beswick home. Medic Unit No. 2, like other City Medic Units,
was staffed with paramedics, who have more training than
EMTs. However, at 20:04:57, when Zayes received the third call,
Medic Unit No. 2 was no longer available. Nor was the next
closest Medic Unit, No. 8, based at Boudinot and Hart Streets.
In response to the 20:04:47 call, Medic Unit 31, the third closest
of the City’s Medic Units, was dispatched from Second Street,
and Fire Department Engine No. 7 was dispatched from
Kensington and Castor. However, Engine No. 7 is staffed only
with EMTs, and EMTs are not permitted to administer
epinephrine or atropine to patients. Medic unit 31 took 8
minutes and 34 seconds to arrive at 959 East Schiller Street.
Engine No. 7 took 3 minutes and 34 seconds to arrive. Engine
No. 7 and Medic Unit No. 2 – which was available for the first
call but was never contacted by Rodriguez – were both based at
Kensington and Castor, and would have had to travel the same

261

distance to get to the Beswick residence. Based upon this
information, the total delay in getting a Medic Unit to respond
to Beswick has been estimated by Battalion Chief Schweizer to
be 16 minutes and 16 seconds. It is undisputed that Beswick
died of a heart attack upon his arrival at the hospital. He was
cremated two days later without an autopsy, so the exact
magnitude of his heart attack can never be known.
Plaintiffs have introduced evidence that this 16 minute, 16
second delay caused or contributed to the cause of Beswick’s
death, through the deposition testimony of Kale Etchberger and
Joanne Przeworski, the two Fire Department paramedics who
arrived on the scene as part of Medic Unit 31. Both testified that
when they arrived, Engine No. 7’s EMTs were already tending
to Beswick. However, those EMTs, unlike paramedics, cannot
administer medications. As indicated in these paramedics’
depositions, Engine No. 7’s Lifepack 500 defibrillator machine
received a “shock advised” message at 20:07:48, which suggests
that at the time, Beswick was either in a state of v-fib or v-tack;
in other words, his heartbeat was not totally flat. Additionally,
upon the administration of medications by Etchberger and
Przeworski, Beswick’s heart rate was temporarily restored. Both
paramedics testified that they believed he had a chance to be
saved when they first came to the scene. Plaintiffs’ expert, Dr.
Norman Makous, a cardiologist, would opine to a reasonable
degree of medical certainty that based on established medical
literature regarding observed cardiac arrests due to ventricular
fibrillation, and assuming that Beswick was still breathing at the
time of the first 911 call, that had Medic Unit No. 2 arrived after
the first call, Beswick’s chance of survival would have equaled, if
not exceeded, thirty-four (34) percent.~
III. Discussion
Summary judgment under Federal Rule of Civil Procedure 56(c)
is appropriate only if, drawing all inferences in favor of the nonmoving party, “the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue of material

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fact and the movant is entitled to judgment as a matter of law.”
~

Loss of a Chance Theory of Proximate Cause
CareStat defendants argue that on its face, a statistical survival
rate of 34 percent, which plaintiffs’ medical expert concludes is
the chance for survival Beswick would have had if a City
ambulance had been appropriately dispatched, is insufficient as a
matter of law to establish proximate cause. In the alternative,
CareStat defendants argue that additional factors unique to
Beswick, such as preexisting heart and stroke conditions, as well
as chronic obstructive pulmonary disease, necessarily served to
reduce his chances of survival well below 34 percent; further,
they contend that Wiegand’s deposition testimony indicates that
she waited “five or ten minutes” before responding to Beswick’s
collapse, therefore Dr. Makous’ conclusions, which are based on
observed cardiac arrests, are inadmissible. Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993) (holding that when
expert testimony’s factual basis, data, principles, methods or
their application are called sufficiently into question, the trial
court must determine whether the testimony has a reliable basis
in the knowledge and experience of the relevant discipline).
1. For Purposes of Summary Judgment, Beswick’s Chance of
Survival, Absent Defendants’ Negligence, was 34 Percent.
Addressing defendants’ alternative argument first, for summary
judgment purposes, this court must accept plaintiffs’ allegation
that Wiegand heard Beswick collapse and responded
immediately, as she stated in the police report taken eleven days
after Beswick’s death. Further, Dr. Makous’ conclusions are
predicated upon an article from the New England Journal of
Medicine, which states that “the rate of survival to hospital
discharge for patients with a witnessed collapse who are found
to be in ventricular fibrillation is 34 percent.” Mickey S.
Eisenberg, M.D., Ph.D., & Terry J. Mengert, M.D., “Cardiac
Resuscitation,” N. Eng. J. Med., vol. 344, no. 17, at 1304 (April
26, 2001). The article further states that “[w]hen
cardiopulmonary resuscitation is started within four minutes
after collapse, the likelihood of survival to hospital discharge

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doubles.” Id. at 1305. Viewing all facts of record in the light
most favorable to plaintiffs, this court must assume that
Wiegand called 911 immediately after Beswick’s collapse, and
that at that time, Medic Unit No. 2, with licensed paramedics,
was available for dispatch and 3 minutes and 34 seconds from
the Beswick residence. The article does not specify whether
the start of CPR within four minutes after cardiac arrest doubles
the 34 percent chance of survival, or if it refers to some other
statistic. Thus, a jury could conclude that Beswick’s chances for
survival were at least 34 percent, if not more, had the 911 call
not been diverted to CareStat. Moreover, the 34 percent survival
rate noted in the article and in Dr. Makous’ conclusions does
not assume only patients who are experiencing their first cardiac
arrest, or patients without other pre-existing conditions. Thus,
for the purposes of summary judgment, the court must assume
that the factors surrounding the cardiac arrest of an individual
with Beswick’s medical history were taken into account by both
the article and Dr. Makous.~
The court finds Dr. Makous, a licensed physician who has spent
more than fifty years practicing cardiology, is basing his
opinions upon established modern medicine, stated, inter loci, in
the New England Journal of Medicine, and thus is scientifically
reliable~. The 34 percent probability that Dr. Makous cites
should not be confused with the degree of his medical certainty
as to the accuracy of that opinion.
2. Loss of a Chance
Pennsylvania tort law follows the Restatement Second of Torts,
§ 323, which provides:
§ 323. Negligent Performance of Undertaking to
Render Services. One who undertakes,
gratuitously or for consideration, to render
services to another which he should recognize
as necessary for the protection of the other’s
person or things, is subject to liability to the
other for physical harm resulting from his
failure to exercise reasonable care to perform
his undertaking, if (a) his failure to exercise such care

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increases the risk of such harm, or (b) the harm is
suffered because of the other’s reliance upon
the undertaking.
(emphasis added). See Hamil v. Bashline, 481 Pa. 256 (1978). In
Hamil, plaintiff’s husband, who was suffering from severe chest
pains, was brought to the defendant hospital. Due to a faulty
electrical outlet, the EKG machine failed to function. A second
EKG machine could not be found and, upon receiving no
further aid or treatment, Hamil transported her husband to a
private doctor’s office, where he died of cardiac arrest while an
EKG was being taken. Plaintiff’s expert witness estimated that
the decedent would have had a 75 percent chance of surviving
the attack had he been appropriately treated upon his arrival at
the hospital. Following the introduction of all evidence, the trial
court determined that plaintiff’s medical expert had failed to
establish, with the required degree of medical certainty, that the
alleged negligence of the defendant was the proximate cause of
plaintiff’s harm, and directed a verdict for the defendant. The
Supreme Court reversed, finding that cases such as this “by their
very nature elude the degree of certainty one would prefer and
upon which the law normally insists before a person may be
held liable.” The court interpreted the effect of § 323(a) of the
Restatement as to address these situations, and relaxed the
degree of evidentiary proof normally required for plaintiff to
make a case for the jury as to whether a defendant may be held
liable for the plaintiff’s injuries. Accordingly, the court adopted
the following standard:
Once a plaintiff has introduced evidence that a
defendant’s negligent act or omission increased
the risk of harm to a person in plaintiff’s
position, and that the harm was in fact
sustained, it becomes a question for the jury as
to whether or not that increased risk was a
substantial factor in producing the harm. Such a
conclusion follows from an analysis of the
function of § 323(a).
In determining the burden of proof required ultimately to
warrant a jury verdict for the plaintiff, the Hamil court again

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relied on the Restatement Second of Torts, which reflected the
state of the law at the time of its adoption in 1965; namely that
the quantum of proof, or “substantial factor,” necessary is a
preponderance of the evidence.


Comment (a) of § 433B states:
a. Subsection (1) states the general rule as to the
burden of proof on the issue of causation. As
on other issues in civil cases, the plaintiff is
required to produce evidence that the conduct
of the defendant has been a substantial factor in
bringing about the harm he has suffered, and to
sustain his burden of proof by a preponderance
of the evidence. This means that he must make
it appear that it is more likely than not that the
conduct of the defendant was a substantial
factor in bringing about the harm. A mere
possibility of such causation is not enough; and
when the matter remains one of pure
speculation and conjecture, or the probabilities
are at best evenly balanced, it becomes the duty
of the court to direct a verdict for the
defendant.

Accordingly, this court will permit Dr. Makous’ testimony
regarding the increased risk of harm to Beswick of 34 percent,
and will allow the jury to determine, by a preponderance of the
evidence, whether this increased risk brought about Beswick’s
death.~
D. Negligence of Ilehuk and Tkach
The CareStat defendants seek dismissal of Tkach and Ilehuk on
the grounds that any negligence on their part could not have
been a proximate cause of the death of Beswick because they
arrived after the Fire Department, and thus never participated in
the care of Beswick. Plaintiffs argue that it is not the lack of
qualifications of these defendants that caused the delay in
Beswick’s treatment. Rather, they claim that these defendants
should have turned down the assignment because of their lack
of qualifications, which contributed to the delay in medical
attention. Plaintiffs assert, and defendants do not dispute, that

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Ilehuk and Tkach had not yet completed their training as
paramedics. Thus, plaintiffs contend, those defendants’
acceptance of the 911 call was improper as a matter of
Pennsylvania statutory law. Because of the breach of their duty
to refuse a call for a residential transport, defendants caused a
delay which allegedly was the proximate cause of Beswick losing
all chance of survival.
IV. CONCLUSION
For the foregoing reasons,~ the CareStat defendants’ Motions
are denied, and~ Tkach, and Ilehuk’s Motion is denied.
An appropriate order follows.~

Some Historical Notes on Beswick
A. Perception of corruption and incompetence with the 911 system
goes back well before Beswick. Rap group Public Enemy included
“911 Is a Joke” on their seminal Fear of a Black Planet album in 1990.
Flava Flav rapped:
“Now I dialed 911 a long time ago
Don’t you see how late they’re reactin’
They only come and they come when they wanna
So get the morgue, embalm the goner~
You better wake up and smell the real flavor
Cause 911 is a fake life saver”

B. Even though Julia Rodriguez knew that Ralph R. Beswick, Sr. died
on February 11, 2000, according to newspaper accounts she again
diverted calls to CareStat two days later on February 13. The Beswick
call was one of eight allegedly diverted to CareStat on February 11
and 13, 2000. The others included a 34-week pregnant woman who
was “leaking water,” a man asking for an ambulance to transport his
78-year-old grandfather to the hospital, a person who was having
blood-pressure problems following a dental procedure, a woman
asking for transport to the hospital for her 77-year-old father after his
feeding tube popped out, and two different women requesting
assistance for their mothers who had fallen.

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On March 21, 2000, between four and six in the morning, police
arrested Julia Rodriguez, Slawomir Cieloszczyk, Ruslan Ilehuk, and
Ivan Tkach. Rodriguez pled guilty to a series of charges. Cieloszczyk,
Ilchuk and Tkach were convicted of various counts of conspiracy,
theft of services, and recklessly endangering another person. In April
2001, the four were sentenced. Rodriguez received a one to two year
prison sentence plus four years of probation and 100 hours of
community service. Cieloszczyk received six to 23 months in prison
plus three years of probation. Ilchuk and Tkach, each received six to
23 months of house arrest plus two years of probation and 200 hours
of community service.
The CareStat ambulance company went out of business and the
Philadelphia Fire Department severed its relationship with the private
paramedic school where Rodriguez first met Ilchuk and Tkach.

Note on Loss of a Chance and Some Questions to Ponder
There are difficult philosophical questions brewing in Beswick.
The plaintiff’s expert says that had Ralph Beswick gotten to the
hospital without the CareStat-instigated delay, then he would have
had a 34 percent chance of surviving. In other words, the odds are
that Beswick would have died even if he had received the emergency
services blocked by the defendants. So, bearing that in mind, did the
defendants’ actions kill Beswick? Or is it even possible to say?
Here we have what is called a “loss of a chance” situation, a recurrent
problem in a great variety of torts lawsuits, especially those involving
expert testimony that offers statistical probabilities.
There are two ways of conceiving of the loss-of-a-chance problem –
as a question of causation, or as a question of whether or not there is
an injury sufficient for a prima facie case. The distinction between
these two modes of thought begins with understanding what, exactly,
is the injury being sued upon.
If the injury is the loss of a chance to survive, then we encounter the
difficult question of whether losing a “a chance” counts as a personal
injury.

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If, however, the injury being sued upon is death, then we have the
difficult causation question of whether one can say that causing a
decreased probability of survival is the same as causing death.
The loss-of-a-chance question is dealt with in a deeper way in the
case of Herskovits v. Group Health, which appears later on in Chapter 9
as part of a discussion of the injury requirement of the prima facie
case for negligence. Herskovits presents both ways of conceiving of
the problem – as a question of causation, and as a question of the
existence of an injury.
For now, however, in the case of Beswick, the injury being sued on is
Beswick’s death. That means we are confronted with the causation
question. So, some questions to ponder:
A. The preponderance standard requires that the plaintiff prove that
it is more likely than not (>50%) that the injury – death in this case –
was actually caused by the defendant’s negligent action. Can we say
that we are more than 50% sure that Beswick’s death was caused by
the defendants’ negligence when Beswick had a greater than 50%
chance of dying anyway?
B. Consider the following from the court’s opinion:
“[T]his court will permit Dr. Makous’ testimony
regarding the increased risk of harm to Beswick
of 34 percent, and will allow the jury to
determine, by a preponderance of the evidence,
whether this increased risk brought about
Beswick’s death.”

Does this question make sense? How can an “increased risk” of
death bring about someone’s death? That is, how can someone be
killed by an increased risk of being killed by something, as opposed
to being killed by the something itself? And if this question is so
conceptually vexed, then what is the point of putting it to a jury?

Note on “Substantial Factor”
In seeking a way to resolve the thorny loss-of-a-chance causation
questions presented in this case, the Beswick court follows the lead of
Pennsylvania state courts in looking to the “substantial factor”

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requirement of the Restatement Second of Torts. The court quotes
from Comment (a) of § 433B, “[T]he plaintiff is required to produce
evidence that the conduct of the defendant has been a substantial
factor in bringing about the harm he has suffered.”
It is not clear, however, that engaging in a “substantial factor” inquiry
does much to help. In fact, it is hard even to know what the
“substantial factor test” is supposed to be. A team of torts scholars
has noted that the substantial factor test is surrounded by ambiguity
and uncertainty. They write, “[T]he test gives no clear guidance to the
factfinder about how one should approach the causal problem. It also
permits courts to engage in fuzzy-headed thinking about what sort of
causal requirement should be imposed on plaintiffs, especially in
cases that present complications in the availability of causal
evidence.” Joseph Sanders, William C. Powers, Jr., Michael D. Green,
The Insubstantiality of the “Substantial Factor” Test for Causation, 73 MO. L.
REV. 399, 430 (2008).

Multiplicity Issues
In any given case, trying to untangle the facts to determine but-for
causation can be difficult. Conceptually, however, the but-for test
itself is simple. And, as we discussed earlier, the but-for test is most
of actual causation doctrine. When we do have to venture beyond the
but-for test, actual causation doctrine gets considerably more
complex.
The situations in which actual causation doctrine moves beyond the
but-for test all have to do with concurrent negligent conduct by
multiple actors – what we are calling in this book “multiplicity”
issues. As you will see, once multiple negligent actors enter the mix, it
is possible to create scenarios where the strict application of the butfor test will allow some or all of them to escape liability, even in
situations where that seems at odds with our intuitions of fairness.
The multiplicity exceptions to the but-for test all apply when the butfor test is not satisfied – that is, when a defendant’s negligent action
cannot be shown by a preponderance of the evidence to be a but-for
cause of the plaintiff’s injury. In other words, the exceptions to the
but-for test are for holding defendants liable even when the conduct

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of those defendants was not a but-for cause of the plaintiff’s injury.
Stated still another way, the multiplicity exceptions to the but-for test
help plaintiffs, not defendants. (To be entirely candid, this is not
universally true. Some highly complex cases involving things like
environmental damage have employed but-for exceptions against
plaintiffs, but those cases are rare, involve exotic facts, tend to be
idiosyncratic, and are arguably erroneously decided. We won’t be
covering them here.)
Also, keep in mind that just because there are multiple actors in a
case, it does not follow that we need to look at exceptions to the butfor doctrine. In the vast majority of situations in the real world that
involve multiple negligent defendants, the but-for test will indicate
that each one of them is an actual cause of the plaintiff’s injury.
Multiple Necessary Causes
In situations where there are multiple necessary causes – more than
one action that had to occur in order for the plaintiff to be injured –
then there is no need to look for an exception to but-for causation,
because all such action satisfy the but-for test.
Let’s go back to the basic rule: If a plaintiff would not have suffered
the complained-of injury but for the negligent conduct of the
defendant, then actual causation is satisfied. Stated in this positive
form, the but-for rule has no exceptions. That is, it is true with no
caveats that if a defendant is a but-for cause of the plaintiff’s injury,
then actual causation is satisfied.
Everything else in actual causation law is directed at expanding the
range of defendants who will be deemed an actual cause of the
plaintiff’s injuries. That is, in rare circumstances, the law sometimes
will allow the actual causation requirement to be satisfied against a
defendant who cannot, because of strict logic or a lack of proof, be
found to be a but-for cause of the plaintiff’s injury. Those situations
are exemplified in the cases found further below in this chapter:
Kingston v. Chicago & Northwestern Railway, Summers v. Tice, and Sindell v.
Abbott Labs.

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But first, let’s cement our understanding of how the but-for test
works with multiple parties. Any and all defendants whose conduct is
a but-for cause of the sued-upon injury has the actual-causation
element satisfied against them. No such defendant can point to any
other defendant and say, “That defendant is really to blame, so I
should not be held liable.” (You might want to re-review the Leadfoot
to Liver Lobe example above.)
When we study damages later on, we will find out that it may be
possible for one of multiple defendants to escape responsibility for a
portion of the damages. Whether this is possible depends on the
jurisdiction and the circumstances. Sometimes, one of many
responsible defendants can, at plaintiff’s election, be made to pay all
the damages (joint and several liability), other times less culpable
defendants can shrug off a part of the financial hit (such as through
apportionment, indemnity, or contribution). But none of this changes
the analysis with regard to the actual-causation element: But-for
causation satisfies the element actual causation.
The situation where there is more than one but-for cause is
sometimes called multiple necessary causes. We can state a rule for
this situation as follows: Where multiple causes are necessary to
produce the harm, then each such cause is an actual cause.
Now, you can regard this as a rule. It’s reliably accurate. But, in
reality, calling it a “rule” is unnecessary. The only good that comes of
stating this as a rule is to dispel an instinctual misapprehension that,
in the ordinary case, there is only one true cause of a plaintiff’s harm.
All you need to do is apply the but-for test: If the defendant is a butfor cause, then the actual-causation element is met. Other defendants
are simply irrelevant to the actual causation question.
Case: Jarvis v. J.I. Case Co.
The following case illustrates how any defendant who is a but-for
cause is helpless to escape the actual causation element. Note that the
court – continuing our cavalcade of motley terminology – uses the
terms “legal cause” and “cause in fact” to refer to actual causation.

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Jarvis v. J.I. Case Co.
Court of Appeal of Louisiana, First Circuit
October 11, 1989
551 So.2d 61. Harry Jarvis & Dorothy Jarvis v. J.I. Case Co.,
Teledyne Wisconsin Motor, Louisiana Municipal Risk
Management Agency, Certainteed Corp., Koppers, Inc., and
William D. Cook d/b/a Billy’s Equipment Repair, a/k/a B&L
Group, Inc. Nos. 88 CA 0700, 88 CA 1579 and 88 CA 1288.
Before WATKINS, CRAIN and ALFORD, JJ.
Judge J. LOUIS WATKINS, JR.:
From a series of summary judgments dismissing all defendants,
plaintiffs Harry and Dorothy Jarvis have appealed.
In their petition plaintiffs claimed damages for severe personal
injury, alleging negligence and strict products liability on the part
of the following defendants: Certainteed Corporation~, Koppers
Company, Inc.~, J.I. Case Corporation (Case), Teledyne
Wisconsin Motor~, and B&L Group, Inc.~
Mr. Jarvis was an experienced foreman of a repair crew for the
City of Baker. On December 10, 1984, his crew was sent out to
repair a natural gas leak. Mr. Jarvis was operating a backhoe
powered by a gasoline powered internal combustion engine.
Before the gas to the leaking line was cut off by the supervisor
and a co-worker, Mr. Jarvis positioned the backhoe over the
area of the gas leak. Plaintiffs allege that the backhoe backfired,
causing the gas to ignite and explode. Mr. Jarvis was rescued
from the fire, but he received severe burns to much of his body.
Several weeks prior to the accident city employees performed
some maintenance work on the particular gas vein, which was
constructed of PVC pipe designed, manufactured, and sold by
defendant Certainteed. The workers used a solvent, Bitumastic
No. 50, which was designed, manufactured, and distributed by
defendant Koppers. The solvent was used at a coupling to
facilitate that procedure, but in the process some of the solvent
came into contact with the PVC pipe. The solvent allegedly
caused the pipe to soften and eventually rupture.

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Plaintiffs’ cause of action against the remaining defendants
focuses on the backhoe. At some undisclosed time prior to the
accident, the backhoe, designed and manufactured by defendant
Case, was taken to defendant B&L for an engine replacement.
Defendant Teledyne designed and manufactured the engine
which the repairman installed.
Thus, plaintiffs claim the use of four instrumentalities – the
pipe, the solvent, the backhoe, and the engine – combined to
cause the explosion and the resulting personal injury. The
defenses available to the four manufacturers are identical. ~[A]ll
defendants claim that they cannot be liable because Mr. Jarvis
was the sole cause of his own injury when he knowingly placed
the backhoe in contact with the leaking gas. The fallacy of
defendants’ argument is their failure to acknowledge the concept
that there can be several causes in fact which combine, result in
injury, and become legal cause.
Plaintiffs contend that the trial court erred in granting the
motions because the defendants are not entitled to judgment as
a matter of law. We agree. In oral reasons for judgment the trial
judge appeared to focus on the nature of an internal combustion
engine: that the substitution of a natural gas mixture in lieu of an
oxygen mixture into the carburator will result in a “very
spectacular combustion.” However, the laws of physics do not
resolve the question of legal cause. Although the trial judge
stated he was basing his decision to grant the summary
judgments on a duty-risk analysis of the facts, our own analysis
leads to a different result.
[I]n this case there is an obvious ease of association between
injury by explosion and the duty of manufacturers and
repairmen to provide pipe, solvent, a backhoe and an engine
that are not unreasonably dangerous, whether the danger arises
from poor design, failure to warn, or from traditional
negligence.
Furthermore, causation is clearly a question for the trier of fact.
Any causal connection between the harm and a defendant
mover's act, however slight when compared with other causes in
fact, presents a jury question.~

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Accordingly, we reverse the judgments of the trial court and
remand the case for further proceedings. Costs of appeal are to
be borne by the five appellees-defendants.
REVERSED AND REMANDED.

Multiple Sufficient Causes
Here we come to the first kind of case in which actual causation can
be established against a defendant despite the fact that the plaintiff
would have suffered the injury even if the defendant had not acted
negligently – that is, even where the defendant is not a but-for cause.
The occasion is where there are multiple sufficient causes, that is
where there was more than one negligent act – i.e., breach of the duty
of care – that would have caused the harm.
The doctrine is best explained with an example that drove the
doctrine’s development: twin fires. In fact, multiple-sufficient-cause
doctrine might well be called the “twin-fires doctrine,” since it is so
closely associated with this particular circumstance: Defendant A
negligently sets a fire that spreads through the countryside. Not far
away, Defendant B negligently sets a fire that spreads through the
countryside. Soon, the A fire and the B fire merge. The merged fire
proceeds along a path that leads to the plaintiff’s property, burning it
down. Neither defendant represents a but-for cause of plaintiff’s
injuries. Why not? Ask the but-for question. Would the plaintiff have
been uninjured but for the actions of A? No – the plaintiff would
have been injured anyway, since the fire set by B was sufficient to
cause a conflagration to move across the countryside to plaintiff’s
property. That is, if A had been careful and not set any fire, the
plaintiff’s house still would have burned down. So A is not a but-for
cause of the plaintiff’s injuries. The exact same can be said of B. If B
had been non-negligent and never set the fire, the plaintiff’s property
still would have burned, since A’s ignition of the countryside was
sufficient to burn the path to the plaintiff.
If but-for causation were the only way to establish the element of
actual causation against a defendant, then in a twin-fires case, the
plaintiff would lose. Courts found this result unpalatable: The only
reason the plaintiff winds up empty handed is that there was more

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carelessness. So the courts fashioned doctrine that allows actual
causation to be satisfied even where the but-for test is not. We can
state a rule for these situations like this: Where each of multiple
discrete events, not committed by the same actor, would have
been sufficient each in itself to cause the harm, then each act is
deemed an actual cause, despite not being a but-for cause.
Our twin-fire example had two negligent actors, each contributing a
sufficient cause. But in its purest form, the doctrine does not require
multiple negligent actors. One cause could have been set in motion
nonnegligently – for instance, by someone who caused the fire
despite exercising all due care, or even by natural causes. Not all
courts would go so far – as the Kingston case indicates, below.
Nonetheless, the application of the doctrine focuses on whomever
the plaintiff has sued. If that defendant’s actions were sufficient to
cause the plaintiff’s injury, then actual causation can be deemed
satisfied despite the fact that the defendant’s actions are not a but-for
cause.
Case: Kingston v. Chicago & Northwestern Railway
The following is a classic twin-fires case that illustrates the doctrine.

Kingston v. Chicago & Northwestern Railway
Supreme Court of Wisconsin
January 11, 1927
191 Wis. 610, KINGSTON, Respondent, v. CHICAGO &
NORTHWESTERN RAILWAY COMPANY, Appellant.
The FACTS in the OFFICIAL REPORTER:
Action to recover damages caused by a fire. One main line of
defendant’s railroad extends in a general north-and-south
direction from Gillett, Wisconsin, to Saunders, Michigan,
through Bonita. A branch line extends westerly from Bonita to
Oconto Company’s logging road. The branch runs generally in
an east-and-west direction and is about ten miles in length.
LaFortune’s spur is on the branch about two miles west of
Bonita. The spur consists of a sidetrack on the south side of and
parallel with the branch track. Plaintiff’s property was located on

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a landing, known as Kingston’s landing, and as the cedar yard,
adjacent to and south of the spur track.
On April 29, 1925, a forest fire was burning about one half to
one mile northwesterly, nearly west, of this landing. On the
same date another fire was burning about four miles northeast
of the landing. On April 30th these two fires united in a region
about 940 feet north of the railroad track. The line of fire thus
formed after the union was about forty or fifty rods east and
west. It then traveled south and burned plaintiff’s property,
consisting of logs, timber, and poles on this landing or in the
cedar yard. The plaintiff claims that both fires which united
were set by the railroad company, one by a locomotive on its
main line running north of Bonita, the other by a locomotive on
the branch about three miles west of Bonita and about a mile in
a westerly direction from the spur.
The jury found that both fires were set by locomotives
belonging to the defendant company and that both fires
constituted a proximate cause of the damage.~
Judgment was rendered for the plaintiff for the amount of the
damages as found by the jury, and the defendant brings this
appeal.
Justice WALTER C. OWEN:
The jury found that both fires were set by sparks emitted from
locomotives on and over defendant’s right of way. Appellant
contends that there is no evidence to support the finding that
either fire was so set. We have carefully examined the record
and have come to the conclusion that the evidence does support
the finding that the northeast fire was set by sparks emitted
from a locomotive then being run on and over the right of way
of defendant’s main line. We conclude, however, that the
evidence does not support the finding that the northwest fire
was set by sparks emitted from defendant’s locomotives or that
the defendant had any connection with its origin. A review of
the evidence to justify these conclusions would seem to serve no
good purpose, and we content ourselves by a simple statement
of the conclusions thus reached.

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We therefore have this situation: The northeast fire was set by
sparks emitted from defendant’s locomotive. This fire,
according to the finding of the jury, constituted a proximate
cause of the destruction of plaintiff’s property. This finding we
find to be well supported by the evidence. We have the
northwest fire, of unknown origin. This fire, according to the
finding of the jury, also constituted a proximate cause of the
destruction of the plaintiff’s property. This finding we also find
to be well supported by the evidence. We have a union of these
two fires 940 feet north of plaintiff’s property, from which point
the united fire bore down upon and destroyed the property. We
therefore have two separate, independent, and distinct agencies,
each of which constituted the proximate cause of plaintiff’s
damage, and either of which, in the absence of the other, would
have accomplished such result.
It is settled in the law of negligence that any one of two or more
joint tortfeasors, or one of two or more wrongdoers whose
concurring acts of negligence result in injury, are each
individually responsible for the entire damage resulting from
their joint or concurrent acts of negligence. This rule also
obtains “where two causes, each attributable to the negligence
of a responsible person, concur in producing an injury to
another, either of which causes would produce it regardless of
the other, … because, whether the concurrence be intentional,
actual, or constructive, each wrongdoer, in effect, adopts the
conduct of his co-actor, and for the further reason that it is
impossible to apportion the damage or to say that either
perpetrated any distinct injury that can be separated from the
whole. The whole loss must necessarily be considered and
treated as an entirety.”
From our present consideration of the subject we are not
disposed to criticise the doctrine which exempts from liability a
wrongdoer who sets a fire which unites with a fire originating
from natural causes, such as lightning, not attributable to any
human agency, resulting in damage. It is also conceivable that a
fire so set might unite with a fire of so much greater
proportions, such as a raging forest fire, as to be enveloped or
swallowed up by the greater holocaust, and its identity

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destroyed, so that the greater fire could be said to be an
intervening or superseding cause. But we have no such situation
here. These fires were of comparatively equal rank. If there was
any difference in their magnitude or threatening aspect, the
record indicates that the northeast fire was the larger fire and
was really regarded as the menacing agency. At any rate there is
no intimation or suggestion that the northeast fire was
enveloped and swallowed up by the northwest fire. We will err
on the side of the defendant if we regard the two fires as of
equal rank.~
Now the question is whether the railroad company, which is
found to have been responsible for the origin of the northeast
fire, escapes liability because the origin of the northwest fire is
not identified, although there is no reason to believe that it had
any other than human origin. An affirmative answer to that
question would certainly make a wrongdoer a favorite of the law
at the expense of an innocent sufferer. The injustice of such a
doctrine sufficiently impeaches the logic upon which it is
founded. Where one who has suffered damage by fire proves
the origin of a fire and the course of that fire up to the point of
the destruction of his property, one has certainly established
liability on the part of the originator of the fire. Granting that
the union of that fire with another of natural origin, or with
another of much greater proportions, is available as a defense,
the burden is on the defendant to show that by reason of such
union with a fire of such character the fire set by him was not
the proximate cause of the damage. No principle of justice
requires that the plaintiff be placed under the burden of
specifically identifying the origin of both fires in order to
recover the damages for which either or both fires are
responsible.~
By the Court. – Judgment affirmed.

Twin-Fires Cases and the “Substantial Factor Test” in
the Multiplicity Context
The “substantial factor” inquiry – which we discussed in relation to
the Beswick case – often comes up when courts confront situations –
like that in Kingston v. Chicago & Northwestern Railway – where there are

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multiple sufficient causes for a single injury. The idea is that if there
are multiple sufficient causes, then to count as an actual cause, the
conduct need not be a but-for cause, but must at least be a
“substantial factor” in causing the plaintiff’s injury.
Although courts frequently refer to this as a “test,” it does not tend
to function like one. Professor David A. Fischer has written, “The
test offers no real guidance for determining when a factor is
substantial or even a ‘factor.’ Courts and juries must rely on intuition
to decide the issue.” See Fischer, Insufficient Causes, 94 KY. L.J. 277,
280-81 (2005).
At any rate, courts have now gone on to use the “substantial factor”
inquiry far beyond situations involving multiple sufficient causes.
Fisher notes, “Over the years, courts used the substantial factor test
to do an increasing variety of things it was never intended to do and
for which it is not appropriate. As a result, the test now creates
unnecessary confusion in the law and has outlived its usefulness.” Id.
at 277 (footnote omitted).
About the best that can be said about the “substantial factor”
requirement is that it seems to function as a placeholder for a given
court’s intuitive sense of fairness – one that, while defying crisp
logical specification, provides a path to a more comfortable result.
The Summers v. Tice Doctrine
Another situation in which the courts will permit actual causation to
be satisfied despite the failure of the but-for test is the situation in
Summers v. Tice: Multiple actors do something negligent, and while
only one of them logically could be responsible for the plaintiff’s
injury, because of the circumstances, it is impossible to tell which one
is. In such a case, the Summers v. Tice doctrine allows the plaintiff a
presumption that each of the multiple actors is an actual cause; thus
the burden of proof is shifted, leaving it to the defendants to
disprove causation – if they can – on an individual basis.
This doctrine has been called “double fault and alternative liability”
by treatise writers Prosser & Keeton, and “alternative causes and the
shifted burden of proof” by the Dan B. Dobbs treatise. But in this

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casebook, we will simply call it “Summers v. Tice doctrine,” which is
probably the most common shorthand, referring as it does to the
bizarre case that gave the doctrine its birth.
Case: Summers v. Tice
The seminal case on Summers v. Tice doctrine is also its most vivid
exemplar.

Summers v. Tice
Supreme Court of California
November 17, 1948
33 Cal. 2d 80. CHARLES A. SUMMERS, Respondent, v.
HAROLD W. TICE et al., Appellants. L. A. Nos. 20650, 20651.
In Bank. Carter, J. Gibson, C. J., Shenk, J., Edmonds, J.,
Traynor, J., Schauer, J., and Spence, J., concurred.
Justice JESSE W. CARTER:
Each of the two defendants appeals from a judgment against
them in an action for personal injuries. Pursuant to stipulation
the appeals have been 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 loaded 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 flight to a 10-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

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found by the court that as 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 subject of negligence, defendant Simonson
contends that the evidence is insufficient to sustain the finding
on that score, but he does not point out wherein it is lacking.
There is evidence that both defendants, at about the same time
or one immediately 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.~
The problem presented in this case is whether the judgment
against both defendants may stand. It is argued by defendants
that they are not joint tort feasors, 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 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

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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 finding is the
assumption that the court was unable to ascertain whether the
shots were from the gun of one defendant or the other or one
shot from each of them. 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.~
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 negligence of
one of them injured the plaintiff, hence it should rest with them
each to absolve himself 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 other may also
and plaintiff is remediless. Ordinarily defendants are in a far
better position to offer evidence to determine which one caused
the injury.~
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 himself 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 tort feasors 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.~
The judgment is affirmed.

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Check-Your-Understanding Questions About Summers
A. Could Summers have proved by a preponderance of the evidence
that he would not have suffered his injury but for the negligent action
of Tice?
B. Could Summers have proved by a preponderance of the evidence
that he would not have suffered his injury but for the negligent action
of Simonson?
C. Suppose, instead of things happening the way they did, Summers’s
eye was injured in the following manner: Tice shouts at Simonson
that there is a quail in the direction Tice is pointing. This is despite
the fact that Summers is fully visible in this direction. Simonson takes
the shot, even though, had Simonson simply looked, he would have
noticed Summers standing in the open in the line of fire. Under these
tweaked facts, is the doctrine announced in Summers v. Tice now
necessary for Summers to show actual causation against Tice and
Simonson for the eye injury? Or do the actions of both Simonson
and Tice individually satisfy the but-for test?
Market-Share Liability
The final situation we will cover in which a court will allow actual
causation to be established notwithstanding a lack of but-for
causation is that of market-share liability. This doctrine is applicable
in situations that are similar to Summers v. Tice, where it is unknown
who among multiple negligent actors caused the harm. But marketshare liability can be used in situations where courts have been
reluctant to extend Summers, in particular, where there is a large
number of defendants and where those defendants are not
quantitatively equal participants in the conduct that is alleged to have
harmed the plaintiff.
Just as the multiple-sufficient-cause doctrine is closely associated with
the twin-fires situation and the Summers doctrine is associated with
simultaneously discharged shotguns, the market-share liability
doctrine is closely associated with a particular set of facts: cancer
caused by diethylstilbesterol – called “DES” – a drug given to
pregnant women primarily in the 1940s, 50s, and 60s. It turns out

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that an expectant mother’s ingestion of DES can cause changes in a
female fetus that eventually manifest as adenosis and cancer when the
female child reaches at least the age of 10 or 12 years. Sometimes
these problems do not manifest until adulthood. Many different drug
companies manufactured DES, and because of the passage of time
and the erosion of memory and destruction of records, it became
impossible to determine who among them manufactured the
particular tablets taken by any given plaintiff’s mother.
As with Summers, in the DES cases multiple parties engaged in
negligent or otherwise culpable conduct, and as with Summers, it was
impossible for the injured plaintiff to show but-for causation against
any single defendant. But the DES situation was unlike Summers in
that some drug companies manufactured a large portion of the DES
sold, while others manufactured only a very small sliver. There was
also a very large number of manufacturers – upwards of 200. By
contrast, in Summers, there were only two defendants, each of whom
discharged similar shotgun shells at the same time with equal
likelihood of injuring the plaintiff. Holding any one DES defendant
responsible for all of plaintiff’s damages – as Summers v. Tice would
have allowed – seemed unfair to courts. But so did not providing
plaintiffs any path to recovery. The solution was market-share
liability, in which each defendant could be made liable for a portion
of the plaintiff’s damages corresponding to the defendant’s share of
the DES market.
Case: Sindell v. Abbott Labs
The following is the seminal case on market-share liability. It also
demonstrates the potential influence of a student law-review note.

Sindell v. Abbott Labs
Supreme Court of California
March 20, 1980
26 Cal. 3d 588. JUDITH SINDELL, Plaintiff and Appellant, v.
ABBOTT LABORATORIES et al., Defendants and
Respondents. MAUREEN ROGERS, Plaintiff and Appellant, v.
REXALL DRUG COMPANY et al., Defendants and
Respondents. Defendant-appellees: Abbott Laboratories, Eli

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Lilly and Company, E.R. Squibb and Sons, the Upjohn
Company, and Rexall Drug Company. Opinion by Mosk, J.,
with Bird, C.J., Newman, J., and White, J., concurring. Separate
dissenting opinion by Richardson, J., with Clark and Manuel, JJ.,
concurring. White, J., assigned by the Chairperson of the Judicial
Council.
Justice STANLEY MOSK:
This case involves a complex problem both timely and
significant: may a plaintiff, injured as the result of a drug
administered to her mother during pregnancy, who knows the
type of drug involved but cannot identify the manufacturer of
the precise product, hold liable for her injuries a maker of a drug
produced from an identical formula?
Plaintiff Judith Sindell brought an action against eleven drug
companies and Does 1 through 100, on behalf of herself and
other women similarly situated. The complaint alleges as
follows:
Between 1941 and 1971, defendants were engaged in the
business of manufacturing, promoting, and marketing
diethylstilbesterol (DES), a drug which is a synthetic compound
of the female hormone estrogen. The drug was administered to
plaintiff’s mother and the mothers of the class she represents,
for the purpose of preventing miscarriage. The plaintiff class
alleged consists of “girls and women who are residents of
California and who have been exposed to DES before birth and
who may or may not know that fact or the dangers” to which
they were exposed. Defendants are also sued as representatives
of a class of drug manufacturers which sold DES after 1941.
In 1947, the Food and Drug Administration authorized the
marketing of DES as a miscarriage preventative, but only on an
experimental basis, with a requirement that the drug contain a
warning label to that effect.
DES may cause cancerous vaginal and cervical growths in the
daughters exposed to it before birth, because their mothers took
the drug during pregnancy. The form of cancer from which
these daughters suffer is known as adenocarcinoma, and it

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manifests itself after a minimum latent period of 10 or 12 years.
It is a fast-spreading and deadly disease, and radical surgery is
required to prevent it from spreading. DES also causes adenosis,
precancerous vaginal and cervical growths which may spread to
other areas of the body. The treatment for adenosis is
cauterization, surgery, or cryosurgery. Women who suffer from
this condition must be monitored by biopsy or colposcopic
examination twice a year, a painful and expensive procedure.
Thousands of women whose mothers received DES during
pregnancy are unaware of the effects of the drug.
In 1971, the Food and Drug Administration ordered defendants
to cease marketing and promoting DES for the purpose of
preventing miscarriages, and to warn physicians and the public
that the drug should not be used by pregnant women because of
the danger to their unborn children.
During the period defendants marketed DES, they knew or
should have known that it was a carcinogenic substance, that
there was a grave danger after varying periods of latency it
would cause cancerous and precancerous growths in the
daughters of the mothers who took it, and that it was ineffective
to prevent miscarriage. Nevertheless, defendants continued to
advertise and market the drug as a miscarriage preventative.
They failed to test DES for efficacy and safety; the tests
performed by others, upon which they relied, indicated that it
was not safe or effective. In violation of the authorization of the
Food and Drug Administration, defendants marketed DES on
an unlimited basis rather than as an experimental drug, and they
failed to warn of its potential danger. It is alleged also that
defendants failed to determine if there was any means to avoid
or treat the effects of DES upon the daughters of women
exposed to it during pregnancy, and failed to monitor the
carcinogenic effects of the drug.
Because of defendants’ advertised assurances that DES was safe
and effective to prevent miscarriage, plaintiff was exposed to the
drug prior to her birth. She became aware of the danger from
such exposure within one year of the time she filed her
complaint. As a result of the DES ingested by her mother,

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plaintiff developed a malignant bladder tumor which was
removed by surgery. She suffers from adenosis and must
constantly be monitored by biopsy or colposcopy to insure early
warning of further malignancy.
The first cause of action alleges that defendants were jointly and
individually negligent in that they manufactured, marketed and
promoted DES as a safe and efficacious drug to prevent
miscarriage, without adequate testing or warning, and without
monitoring or reporting its effects.
A separate cause of action alleges that defendants are jointly
liable regardless of which particular brand of DES was ingested
by plaintiff’s mother because defendants collaborated in
marketing, promoting and testing the drug, relied upon each
other’s tests, and adhered to an industry-wide safety standard.
DES was produced from a common and mutually agreed upon
formula as a fungible drug interchangeable with other brands of
the same product; defendants knew or should have known that
it was customary for doctors to prescribe the drug by its generic
rather than its brand name and that pharmacists filled
prescriptions from whatever brand of the drug happened to be
in stock.
Other causes of action are based upon theories of strict liability,
violation of express and implied warranties, false and fraudulent
representations, misbranding of drugs in violation of federal law,
conspiracy and “lack of consent.”
Each cause of action alleges that defendants are jointly liable
because they acted in concert, on the basis of express and
implied agreements, and in reliance upon and ratification and
exploitation of each other’s testing and marketing methods.
Plaintiff seeks compensatory damages of $1 million and punitive
damages of $10 million for herself. For the members of her
class, she prays for equitable relief in the form of an order that
defendants warn physicians and others of the danger of DES
and the necessity of performing certain tests to determine the
presence of disease caused by the drug, and that they establish
free clinics in California to perform such tests.

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Defendants demurred to the complaint. While the complaint did
not expressly allege that plaintiff could not identify the
manufacturer of the precise drug ingested by her mother, she
stated in her points and authorities in opposition to the
demurrers filed by some of the defendants that she was unable
to make the identification, and the trial court sustained the
demurrers of these defendants without leave to amend on the
ground that plaintiff did not and stated she could not identify
which defendant had manufactured the drug responsible for her
injuries. Thereupon, the court dismissed the action.~
This case is but one of a number filed throughout the country
seeking to hold drug manufacturers liable for injuries allegedly
resulting from DES prescribed to the plaintiffs’ mothers since
1947. According to a note in the Fordham Law Review,
estimates of the number of women who took the drug during
pregnancy range from 1 1/2 million to 3 million. Hundreds,
perhaps thousands, of the daughters of these women suffer
from adenocarcinoma, and the incidence of vaginal adenosis
among them is 30 to 90 percent. ([Naomi Sheiner] Comment,
DES and a Proposed Theory of Enterprise Liability (1978) 46
FORDHAM L. REV. 963, 964-967 [hereafter Fordham
Comment].) Most of the cases are still pending. With two
exceptions, those that have been decided resulted in judgments
in favor of the drug company defendants because of the failure
of the plaintiffs to identify the manufacturer of the DES
prescribed to their mothers. The same result was reached in a
recent California case. The present action is another attempt to
overcome this obstacle to recovery.
We begin with the proposition that, as a general rule, the
imposition of liability depends upon a showing by the plaintiff
that his or her injuries were caused by the act of the defendant
or by an instrumentality under the defendant’s control. The rule
applies whether the injury resulted from an accidental event or
from the use of a defective product.
There are, however, exceptions to this rule. Plaintiff’s complaint
suggests several bases upon which defendants may be held liable
for her injuries even though she cannot demonstrate the name

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of the manufacturer which produced the DES actually taken by
her mother. The first of these theories, classically illustrated by
Summers v. Tice (1948) 33 Cal.2d 80, places the burden of proof
of causation upon tortious defendants in certain circumstances.
The second basis of liability emerging from the complaint is that
defendants acted in concert to cause injury to plaintiff. There is
a third and novel approach to the problem, sometimes called the
theory of “enterprise liability,” but which we prefer to designate
by the more accurate term of “industry-wide” liability, which
might obviate the necessity for identifying the manufacturer of
the injury-causing drug. We shall conclude that these doctrines,
as previously interpreted, may not be applied to hold defendants
liable under the allegations of this complaint. However, we shall
propose and adopt a fourth basis for permitting the action to be
tried, grounded upon an extension of the Summers doctrine.
I
Plaintiff places primary reliance upon cases which hold that if a
party cannot identify which of two or more defendants caused
an injury, the burden of proof may shift to the defendants to
show that they were not responsible for the harm. This principle
is sometimes referred to as the “alternative liability” theory.
The celebrated case of Summers v. Tice, supra, 33 Cal.2d 80, a
unanimous opinion of this court, best exemplifies the rule. In
Summers, the plaintiff was injured when two hunters negligently
shot in his direction. It could not be determined which of them
had fired the shot that actually caused the injury to the plaintiff’s
eye, but both defendants were nevertheless held jointly and
severally liable for the whole of the damages. We reasoned that
both were wrongdoers, both were negligent toward the plaintiff,
and that it would be unfair to require plaintiff to isolate the
defendant responsible, because if the one pointed out were to
escape liability, the other might also, and the plaintiff-victim
would be shorn of any remedy. In these circumstances, we held,
the burden of proof shifted to the defendants, “each to absolve
himself if he can.” We stated that under these or similar
circumstances a defendant is ordinarily in a “far better position”

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to offer evidence to determine whether he or another defendant
caused the injury.
In Summers, we relied upon Ybarra v. Spangard (1944) 25 Cal.2d
486. There, the plaintiff was injured while he was unconscious
during the course of surgery. He sought damages against several
doctors and a nurse who attended him while he was
unconscious. We held that it would be unreasonable to require
him to identify the particular defendant who had performed the
alleged negligent act because he was unconscious at the time of
the injury and the defendants exercised control over the
instrumentalities which caused the harm. Therefore, under the
doctrine of res ipsa loquitur, an inference of negligence arose
that defendants were required to meet by explaining their
conduct.
The rule developed in Summers has been embodied in the
Restatement of Torts. (Rest.2d Torts, § 433B, subd. (3).) Indeed,
the Summers facts are used as an illustration.
Defendants assert that these principles are inapplicable here.
First, they insist that a predicate to shifting the burden of proof
under Summers-Ybarra is that the defendants must have greater
access to information regarding the cause of the injuries than the
plaintiff, whereas in the present case the reverse appears.
Plaintiff does not claim that defendants are in a better position
than she to identify the manufacturer of the drug taken by her
mother or, indeed, that they have the ability to do so at all, but
argues, rather, that Summers does not impose such a requirement
as a condition to the shifting of the burden of proof. In this
respect we believe plaintiff is correct.
In Summers, the circumstances of the accident themselves
precluded an explanation of its cause. To be sure, Summers states
that defendants are “[ordinarily] … in a far better position to
offer evidence to determine which one caused the injury” than a
plaintiff, but the decision does not determine that this
“ordinary” situation was present. Neither the facts nor the
language of the opinion indicate that the two defendants,
simultaneously shooting in the same direction, were in a better

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position than the plaintiff to ascertain whose shot caused the
injury. As the opinion acknowledges, it was impossible for the
trial court to determine whether the shot which entered the
plaintiff’s eye came from the gun of one defendant or the other.
Nevertheless, burden of proof was shifted to the defendants.
Here, as in Summers, the circumstances of the injury appear to
render identification of the manufacturer of the drug ingested by
plaintiff’s mother impossible by either plaintiff or defendants,
and it cannot reasonably be said that one is in a better position
than the other to make the identification. Because many years
elapsed between the time the drug was taken and the
manifestation of plaintiff’s injuries she, and many other
daughters of mothers who took DES, are unable to make such
identification. Certainly there can be no implication that plaintiff
is at fault in failing to do so – the event occurred while plaintiff
was in utero, a generation ago.
On the other hand, it cannot be said with assurance that
defendants have the means to make the identification. In this
connection, they point out that drug manufacturers ordinarily
have no direct contact with the patients who take a drug
prescribed by their doctors. Defendants sell to wholesalers, who
in turn supply the product to physicians and pharmacies.
Manufacturers do not maintain records of the persons who take
the drugs they produce, and the selection of the medication is
made by the physician rather than the manufacturer. Nor do we
conclude that the absence of evidence on this subject is due to
the fault of defendants. While it is alleged that they produced a
defective product with delayed effects and without adequate
warnings, the difficulty or impossibility of identification results
primarily from the passage of time rather than from their
allegedly negligent acts of failing to provide adequate warnings.~
It is important to observe, however, that while defendants do
not have means superior to plaintiff to identify the maker of the
precise drug taken by her mother, they may in some instances be
able to prove that they did not manufacture the injury-causing
substance. In the present case, for example, one of the original

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defendants was dismissed from the action upon proof that it did
not manufacture DES until after plaintiff was born.
Thus we conclude the fact defendants do not have greater
access to information that might establish the identity of the
manufacturer of the DES which injured plaintiff does not per se
prevent application of the Summers rule.
Nevertheless, plaintiff may not prevail in her claim that the
Summers rationale should be employed to fix the whole liability
for her injuries upon defendants, at least as those principles have
previously been applied. There is an important difference
between the situation involved in Summers and the present case.
There, all the parties who were or could have been responsible
for the harm to the plaintiff were joined as defendants. Here, by
contrast, there are approximately 200 drug companies which
made DES, any of which might have manufactured the injuryproducing drug.
Defendants maintain that, while in Summers there was a 50
percent chance that one of the two defendants was responsible
for the plaintiff’s injuries, here since any one of 200 companies
which manufactured DES might have made the product that
harmed plaintiff, there is no rational basis upon which to infer
that any defendant in this action caused plaintiff’s injuries, nor
even a reasonable possibility that they were responsible.
These arguments are persuasive if we measure the chance that
any one of the defendants supplied the injury-causing drug by
the number of possible tortfeasors. In such a context, the
possibility that any of the five defendants supplied the DES to
plaintiff’s mother is so remote that it would be unfair to require
each defendant to exonerate itself. There may be a substantial
likelihood that none of the five defendants joined in the action
made the DES which caused the injury, and that the offending
producer not named would escape liability altogether. While we
propose, infra, an adaptation of the rule in Summers which will
substantially overcome these difficulties, defendants appear to
be correct that the rule, as previously applied, cannot relieve
plaintiff of the burden of proving the identity of the
manufacturer which made the drug causing her injuries.

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II
The second principle upon which plaintiff relies is the so-called
“concert of action” theory.~ The gravamen of the charge of
concert is that defendants failed to adequately test the drug or to
give sufficient warning of its dangers and that they relied upon
the tests performed by one another and took advantage of each
others’ promotional and marketing techniques. These allegations
do not amount to a charge that there was a tacit understanding
or a common plan among defendants to fail to conduct
adequate tests or give sufficient warnings, and that they
substantially aided and encouraged one another in these
omissions.
III
A third theory upon which plaintiff relies is the concept of
industry-wide liability, or according to the terminology of the
parties, “enterprise liability.” This theory was suggested in Hall v.
E. I. Du Pont de Nemours & Co., Inc. (E.D.N.Y. 1972) 345 F.
Supp. 353. In that case, plaintiffs were 13 children injured by the
explosion of blasting caps in 12 separate incidents which
occurred in 10 different states between 1955 and 1959. The
defendants were six blasting cap manufacturers, comprising
virtually the entire blasting cap industry in the United States, and
their trade association.~ The gravamen of the complaint was that
the practice of the industry of omitting a warning on individual
blasting caps and of failing to take other safety measures created
an unreasonable risk of harm, resulting in the plaintiffs’ injuries.
The complaint did not identify a particular manufacturer of a
cap which caused a particular injury.
The court reasoned as follows: there was evidence that
defendants, acting independently, had adhered to an industrywide standard with regard to the safety features of blasting caps,
that they had in effect delegated some functions of safety
investigation and design, such as labelling, to their trade
association, and that there was industry-wide cooperation in the
manufacture and design of blasting caps. In these circumstances,
the evidence supported a conclusion that all the defendants
jointly controlled the risk. Thus, if plaintiffs could establish by a

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preponderance of the evidence that the caps were manufactured
by one of the defendants, the burden of proof as to causation
would shift to all the defendants. The court noted that this
theory of liability applied to industries composed of a small
number of units, and that what would be fair and reasonable
with regard to an industry of five or ten producers might be
manifestly unreasonable if applied to a decentralized industry
composed of countless small producers.
Plaintiff attempts to state a cause of action under the rationale
of Hall. She alleges joint enterprise and collaboration among
defendants in the production, marketing, promotion and testing
of DES, and “concerted promulgation and adherence to
industry-wide testing, safety, warning and efficacy standards” for
the drug. We have concluded above that allegations that
defendants relied upon one another’s testing and promotion
methods do not state a cause of action for concerted conduct to
commit a tortious act. Under the theory of industry-wide
liability, however, each manufacturer could be liable for all
injuries caused by DES by virtue of adherence to an industrywide standard of safety.
We decline to apply this theory in the present case. At least 200
manufacturers produced DES; Hall, which involved 6
manufacturers representing the entire blasting cap industry in
the United States, cautioned against application of the doctrine
espoused therein to a large number of producers. Moreover, in
Hall, the conclusion that the defendants jointly controlled the
risk was based upon allegations that they had delegated some
functions relating to safety to a trade association. There are no
such allegations here, and we have concluded above that
plaintiff has failed to allege liability on a concert of action
theory.
Equally important, the drug industry is closely regulated by the
Food and Drug Administration, which actively controls the
testing and manufacture of drugs and the method by which they
are marketed, including the contents of warning labels. To a
considerable degree, therefore, the standards followed by drug
manufacturers are suggested or compelled by the government.

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Adherence to those standards cannot, of course, absolve a
manufacturer of liability to which it would otherwise be subject.
But since the government plays such a pervasive role in
formulating the criteria for the testing and marketing of drugs, it
would be unfair to impose upon a manufacturer liability for
injuries resulting from the use of a drug which it did not supply
simply because it followed the standards of the industry.
IV
If we were confined to the theories of Summers and Hall, we
would be constrained to hold that the judgment must be
sustained. Should we require that plaintiff identify the
manufacturer which supplied the DES used by her mother or
that all DES manufacturers be joined in the action, she would
effectively be precluded from any recovery. As defendants
candidly admit, there is little likelihood that all the
manufacturers who made DES at the time in question are still in
business or that they are subject to the jurisdiction of the
California courts. There are, however, forceful arguments in
favor of holding that plaintiff has a cause of action.
In our contemporary complex industrialized society, advances in
science and technology create fungible goods which may harm
consumers and which cannot be traced to any specific producer.
The response of the courts can be either to adhere rigidly to
prior doctrine, denying recovery to those injured by such
products, or to fashion remedies to meet these changing needs.
Just as Justice Traynor in his landmark concurring opinion in
Escola v. Coca Cola Bottling Co. (1944) 24 Cal.2d 453, recognized
that in an era of mass production and complex marketing
methods the traditional standard of negligence was insufficient
to govern the obligations of manufacturer to consumer, so
should we acknowledge that some adaptation of the rules of
causation and liability may be appropriate in these recurring
circumstances. The Restatement comments that modification of
the Summers rule may be necessary in a situation like that before
us.
The most persuasive reason for finding plaintiff states a cause of
action is that advanced in Summers: as between an innocent

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plaintiff and negligent defendants, the latter should bear the cost
of the injury. Here, as in Summers, plaintiff is not at fault in
failing to provide evidence of causation, and although the
absence of such evidence is not attributable to the defendants
either, their conduct in marketing a drug the effects of which are
delayed for many years played a significant role in creating the
unavailability of proof.
From a broader policy standpoint, defendants are better able to
bear the cost of injury resulting from the manufacture of a
defective product. As was said by Justice Traynor in Escola,
“[the] cost of an injury and the loss of time or health may be an
overwhelming misfortune to the person 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.”
The manufacturer is in the best position to discover and guard
against defects in its products and to warn of harmful effects;
thus, holding it liable for defects and failure to warn of harmful
effects will provide an incentive to product safety. These
considerations are particularly significant where medication is
involved, for the consumer is virtually helpless to protect
himself from serious, sometimes permanent, sometimes fatal,
injuries caused by deleterious drugs.
Where, as here, all defendants produced a drug from an identical
formula and the manufacturer of the DES which caused
plaintiff’s injuries cannot be identified through no fault of
plaintiff, a modification of the rule of Summers is warranted. As
we have seen, an undiluted Summers rationale is inappropriate to
shift the burden of proof of causation to defendants because if
we measure the chance that any particular manufacturer
supplied the injury-causing product by the number of producers
of DES, there is a possibility that none of the five defendants in
this case produced the offending substance and that the
responsible manufacturer, not named in the action, will escape
liability.
But we approach the issue of causation from a different
perspective: we hold it to be reasonable in the present context to
measure the likelihood that any of the defendants supplied the

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product which allegedly injured plaintiff by the percentage
which the DES sold by each of them for the purpose of
preventing miscarriage bears to the entire production of the
drug sold by all for that purpose. Plaintiff asserts in her briefs
that Eli Lilly and Company and five or six other companies
produced 90 percent of the DES marketed. If at trial this is
established to be the fact, then there is a corresponding
likelihood that this comparative handful of producers
manufactured the DES which caused plaintiff’s injuries, and
only a 10 percent likelihood that the offending producer would
escape liability.
The Fordham Comment explains the connection between
percentage of market share and liability as follows: “[If] X
Manufacturer sold one-fifth of all the DES prescribed for
pregnancy and identification could be made in all cases, X would
be the sole defendant in approximately one-fifth of all cases and
liable for all the damages in those cases. Under alternative
liability, X would be joined in all cases in which identification
could not be made, but liable for only one-fifth of the total
damages in these cases. X would pay the same amount either
way. Although the correlation is not, in practice, perfect~, it is
close enough so that defendants’ objections on the ground of
fairness lose their value.” (Fordham Comment, supra, at p. 994.)
If plaintiff joins in the action the manufacturers of a substantial
share of the DES which her mother might have taken, the
injustice of shifting the burden of proof to defendants to
demonstrate that they could not have made the substance which
injured plaintiff is significantly diminished. While 75 to 80
percent of the market is suggested as the requirement by the
Fordham Comment, we hold only that a substantial percentage
is required.
The presence in the action of a substantial share of the
appropriate market also provides a ready means to apportion
damages among the defendants. Each defendant will be held
liable for the proportion of the judgment represented by its
share of that market unless it demonstrates that it could not
have made the product which caused plaintiff’s injuries. In the

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present case, as we have seen, one DES manufacturer was
dismissed from the action upon filing a declaration that it had
not manufactured DES until after plaintiff was born. Once
plaintiff has met her burden of joining the required defendants,
they in turn may cross-complain against other DES
manufacturers, not joined in the action, which they can allege
might have supplied the injury-causing product.
Under this approach, each manufacturer’s liability would
approximate its responsibility for the injuries caused by its own
products. Some minor discrepancy in the correlation between
market share and liability is inevitable; therefore, a defendant
may be held liable for a somewhat different percentage of the
damage than its share of the appropriate market would justify. It
is probably impossible, with the passage of time, to determine
market share with mathematical exactitude. But just as a jury
cannot be expected to determine the precise relationship
between fault and liability in applying the doctrine of
comparative fault or partial indemnity, the difficulty of
apportioning damages among the defendant producers in exact
relation to their market share does not seriously militate against
the rule we adopt. As we said in Summers with regard to the
liability of independent tortfeasors, where a correct division of
liability cannot be made “the trier of fact may make it the best it
can.”
We are not unmindful of the practical problems involved in
defining the market and determining market share, but these are
largely matters of proof which properly cannot be determined at
the pleading stage of these proceedings. Defendants urge that it
would be both unfair and contrary to public policy to hold them
liable for plaintiff’s injuries in the absence of proof that one of
them supplied the drug responsible for the damage. Most of
their arguments, however, are based upon the assumption that
one manufacturer would be held responsible for the products of
another or for those of all other manufacturers if plaintiff
ultimately prevails. But under the rule we adopt, each
manufacturer’s liability for an injury would be approximately
equivalent to the damage caused by the DES it manufactured.

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The judgments are reversed.

Questions to Ponder About Sindell v. Abbott Labs
A. The court says that under Sindell’s market-share liability, “each
manufacturer’s liability would approximate its responsibility for the
injuries caused by its own products.” But is this the case? Suppose a
manufacturer only manufactured 0.01% of the DES sold in the
relevant market. Would it be worth it for a plaintiff to sue such a
manufacturer at all? If not, how might such a manufacturer end up
“be[ing] held liable for the proportion of the judgment represented
by its share of that market”?
B. Sindell allows recovery despite an absence of strict actual causation.
What, if anything, does the Sindell court require in its absence?
C. Considering how the actual causation requirement has been
relaxed in Sindell (as well as in Kingston and Summers), perhaps we
should consider a deeper question: Why bother having actual
causation as a general requirement in negligence cases? If the plaintiff
can prove an injury deserving of compensation and prove culpable
conduct on the part of the defendant deserving liability, then why not
allow a cause of action on those bases alone?
Problem: Nighttime Hit and Run
Suppose a pedestrian is walking at night, legally crossing the road.
The pedestrian is hit by a speeding taxicab, which then leaves the
scene without stopping or even slowing down. Both an eyewitness
and the pedestrian were able to see that the car was a taxicab, but
neither were able to see the name of the taxicab company on the side.
Investigation and discovery discloses that there are three cab
companies in the town. On the night the pedestrian was hit, Ace Taxi
Service was operating 41% of the cabs, Bravo Taxi Service was
operating 34%, and Crystal Taxi Service was operating 25%. The
pedestrian sues Ace, Bravo, and Crystal. Is this the kind of situation
in which the plaintiff can use market-share liability as announced
under Sindell? Why or why not?

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8. Proximate Causation
“For the want of a nail the shoe was lost,
For the want of a shoe the horse was lost,
For the want of a horse the rider was lost,
For the want of a rider the battle was lost,
For the want of a battle the kingdom was lost,
And all for the want of a horseshoe-nail.”
– Benjamin Franklin, 1758

Introduction
This chapter – like the one on actual causation – will do double duty.
Proximate causation is not only an element of negligence, it is a
requirement for torts generally, including, for example, the
intentional torts of battery, trespass to land, and trespass to chattels,
as well as strict liability. For now, we will be talking about proximate
causation in the context of negligence. But when you move on to
considering other tort causes of action, the same doctrine of
proximate causation will apply. (And, once again, you may find that
your criminal law course covers proximate causation as well. The
concept, at root, is the same for torts and crimes, although the
implications diverge.)
To meet the requirement of proximate causation, the plaintiff must
show that the causal chain from the defendant’s breach of duty to the
injury suffered was not too attenuated or indirect. The point of
proximate causation is that it places some outer bound on the scope
of a defendant’s liability for any given tortious act.
Generally, the touchstone is some version of foreseeability. If the
plaintiff’s injury is foreseeable at the time of the time of the
defendant’s duty-breaching conduct, then proximate causation is
usually satisfied – although the details of the doctrine get
considerably more complex.

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The Place of Proximate Causation
Actual causation is a matter of strict, logical, cause-and-effect
relationships. The element of proximate causation, on the other hand, is
a judgment call about how long or attenuated the cause-and-effect
relationship is. “Proximate” means “close.” The label gets at the
question of how close the breach of duty and injury are. The breach
and injury need not be close in space or close in time – they could
take place many miles and many days apart. But the breach and injury
must be somehow close along the chain of causation that links one to
the other.
The element of proximate causation is an outgrowth of the commonsense meaning of the word “cause.” As we saw in the last chapter,
there is a bewilderingly large number of events that are actual causes
of an injury.
Suppose a pedestrian is injured when struck by a car. The car was
being driven by a minister who was headed up a lonely stretch of
mountain road to officiate at a small wedding ceremony. The bride
and groom met a couple years ago when the groom was taken to the
hospital after being injured by a negligently maintained lighting
fixture, which dropped on him from the ceiling of a department
store. The bride-to-be was the groom-to-be’s treating physician, and
after they met, they fell in love.
Now, can we say the department store’s negligence caused the car
accident? A good response might be: “Yes, but only if you are being
silly about it.” In terms of strict cause-and-effect, there is no question
that the department store’s negligence caused the accident. So the
element of actual causation is met. But it still seems ridiculous to say
that the department store “caused” the accident. That’s where
proximate causation comes in. In the language of tort, we would say
that the department store’s negligence was not a proximate cause of
the automobile accident.
One way, then, of defining proximate causation is that it is a certain
lack of silliness in saying that one thing is the “cause” of another.
Proximate causation is one aspect of what we mean in everyday
language when we talk about one thing being the cause of another

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thing. Actual causation is the other. The point of separating them out
for legal analysis is so that we can speak of the concepts more
carefully and thoroughly, which should ultimately allow us to get at a
more fair result.

The Label for Proximate Causation
Just as actual causation goes by many names (see “Some Notes
About the Terminology of Causation” in the previous chapter),
proximate causation is also cursed by having multiple labels. It is
worth spending a little bit of time on the terminology question to
avoid confusion later on.
Proximate cause is sometimes called “legal cause” and sometimes
“scope of liability.” The different labels have developed largely
because many commentators believe “proximate causation” is a
confusing misnomer.
Some critics of the label say that “proximate causation” is misleading
because geographical proximity of the incident and injury is not
required under the doctrine. Neither is proximity in time. Point taken.
But “proximate” is apropos if you think not in terms of a physical
closeness but instead in terms of a kind of metaphysical closeness –
that is, closeness along the chain of causation that links the incident
to the injury.
Others criticize the label “proximate causation” because, they say, the
doctrine has nothing to do with causation. That, however, depends
on how you define “causation.” But that’s only true if you define
“causation” as the strict logical relationship between cause and effect
– in other words, if you define proximate causation as actual
causation. When we say “cause” in everyday speech, there is
ordinarily both a proximate and an actual sense in which we are
talking: We mean that there is a relatively direct cause-and-effect
relationship. If the word “cause” in everyday speech did not include a
kernel of the proximate causation concept, then it would not be
absurd to say the Norman invasion of England “caused” you to be
late to class.

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Ultimately, whether it’s a good label or not, you should think of
“proximate causation” as a term of art. And like many other legal
terms of art, you must learn the concept behind it without trying to
derive its meaning from its constituent words.
Let’s look at the other labels that are used for the proximate
causation concept.
“Legal causation” is one. The “legal causation” label was championed
by the authors of the Second Restatement of Torts. The term gets at
the idea that the doctrine is an artificial limitation on the natural
causal chain – a limitation that is construed to exist by law. The
downside of “legal causation” as a label is that it sounds like it is the
legal side of “factual causation.” And that is not the case at all. The
term “legal causation” also makes it sound like the doctrine is in the
hands of the judge, as a “legal question,” rather than in the hands of
the jury, as a “factual issue.” In fact, generally the opposite is true.
Proximate causation is frequently taken to be mostly a factual issue
for resolution by the jury.
“Scope of liability” is another label. This label has been championed
by the authors of the Third Restatement of Torts. As a term of art,
“scope of liability” avoids the problems people have with “proximate
causation” and “legal causation.” A problem, however, is that “scope
of liability” does not sound like a term of art. Indeed, “scope of
liability” is commonly used in a non-term-of-art sense. For instance, a
lawyer might accurately say, as a way of talking about the statute of
limitations, “Injuries that were suffered 10 years ago are outside the
company’s scope of liability.” Such a statement has nothing to do
with the proximate-causation concept. One might also talk about the
“scope of liability” for patent infringement – and that would have
nothing to do with the proximate-causation concept or even tort law.
At the end of the day, however, the biggest problem with “scope of
liability” is that it simply has not caught on, the efforts of the
Restatement authors notwithstanding. When you see “scope of
liability,” be aware that the term may or may not be a synonym for
proximate causation.

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Having considered these different labels, the bottom line for you as a
budding lawyer is that you need to be cognizant that when a court or
commentator is talking about the concept of proximate causation,
those words might not appear in the text.
Perhaps even more frustrating, you must be aware of the opposite
problem: Courts often use the words “proximate causation” to refer
to actual causation. This happens because court will sometimes say
“proximate causation” to mean causation in general – with the actual
and proximate varieties lumped together. And in many of these
instances, the court will go on to speak exclusively of problems of
actual causation. This leads to some confusing statements, such as,
“To prove proximate cause a plaintiff must show that the result
would not have occurred ‘but for’ defendant’s action.” Mazda Motor
Corp. v. Lindahl, 706 A.2d 526, 532 (Del. 1998).
These complications can be extremely frustrating to new law
students. But keep reading and thinking actively. You will soon
become adroit enough with the concepts that you can see through to
what the court is talking about no matter what labels are being
thrown around.

The Relationship Between Proximate Causation and
Duty of Care
Viewing all of the elements of a prima facie case for negligence
together, you will find considerable practical and conceptual overlap
between the duty-of-care element and the proximate causation
element. Both proximate causation and duty of care function to
circumscribe in a somewhat arbitrary way the range of situations
where a plaintiff can recover from a defendant. In accomplishing this,
both elements largely revolve around the idea of foreseeability. So
why have both elements in the cause of action of negligence? What
distinguishes the two?
These are excellent questions. Conceivably the elements of duty of
care and proximate causation could be combined, or one absorbed
into the other. But for whatever historical reasons there might be,
negligence law developed the way it did, and we have the two
elements.

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Regardless of whether it is ideal to have duty of care and proximate
cause separated, it is possible to articulate some helpful distinctions
between the elements as they exist in modern negligence law.
First, the elements of duty of care and proximate causation can be
distinguished in that they look at the injury-producing incident from
different perspectives. The duty of care element gets at the question,
“When must you be careful?” Proximate causation asks the question,
“Assuming you weren’t careful, just how much are you going to be
on the hook for?”
This difference in perspective has driven the development of one
element or the other when novel questions have arisen. For instance,
the question in Tarasoff v. University of California, of whether a
psychotherapist should be held liable for failing to warn third parties
of a patient’s dangerous propensities, was a question that was
answered by evolving duty-of-care doctrine.
There is also a distinction between the duty-of-care element and the
proximate-causation element in how and to what extent they are the
province of the judge or the jury. It is sometimes said that duty of
care is a question of law to be decided by a judge, while proximate
causation is an issue of fact to be decided by the jury. This is fair as a
broad generalization, but it is not categorically true. Both elements
comprise judge-made legal doctrine that requires judicial
interpretation, and both elements require factual evidence to prove.
Nonetheless, as a functional matter in many cases, the duty-of-care
element is a way for judges to limit the scope of negligence liability,
while proximate causation gives juries a way to do the same.
Ultimately, the most important difference between the duty-of-care
element and the proximate-causation element is that the duty-of-care
element is distinct to the negligence cause of action, while the
concept of proximate causation finds applicability across tort law,
showing up as a general requirement for recovering compensatory
damages. Proximate causation is also a prima facie element of other
causes of action (e.g., strict liability). This difference is probably the
most convincing reason for keeping the two elements doctrinally
separate. The requirement of proximate causation is needed for the

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other tort causes of action to prevent silly results. Suppose a vandal
throws paint on a fence – actionable as trespass to land. After
washing off the paint, the fence-owner plaintiff realizes she likes the
color, so she decides to use it to repaint her living room. While on
her way to a fourth paint store in a vain attempt to match the
vandal’s hue in an interior latex enamel, her car is struck by the
getaway vehicle of a bank robber who is being chased by police.
Proximate causation prevents the fence owner from successfully
suing the vandal for personal injuries sustained in the crash. Without
proximate causation, we might have a very silly result. Keep in mind
that duty of care cannot be a barrier to this suit, because there is no
duty-of-care element in a cause of action for trespass to land.
Meanwhile, we need the duty-of-care element to stop certain wouldbe negligence suits. Suppose a burglar breaks into a store at night and
is injured when hit on the head by a negligently secured lighting
fixture. Proximate causation will not prevent this suit, since the causal
relation is entirely unattenuated. But the duty-of-care element is a
showstopper for the burglar plaintiff, because burglars are not owed a
duty of care.
In truth, the duty-of-care element is more important than just
stopping unwanted negligence suits. The duty-of-care concept is the
very essence of the negligence cause of action. The duty concept, and
the inquiry of whether the defendant’s duty was breached, is what
distinguishes negligence from strict liability and the intentional torts.
Strict liability has no element of breach of duty whatsoever, being
limited in extent by the tightly circumscribed situations in which it is
applicable. And the intentional torts are limited by the intent concept
rather than duty.
Thus, while duty of care and proximate causation have a great deal of
overlap, neither can be done away with without completely
restructuring our entire system of tort doctrine from the ground up.
Case: Palsgraf v. Long Island Railroad
As discussed, there are some situations that present a duty-of-care
issue, yet do not involve any question of proximate causation. Other
situations do the opposite. Many cases, however, implicate both. The

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following case implicates both concepts, and in so doing it provides a
vehicle for discussing each and their relation to one another. It is
such a good vehicle for considering these issues that it has become
the most famous case in American tort law. It may even be the most
famous case in the entire American common-law canon. In it, Judge
Benjamin N. Cardozo and Judge William Shankland Andrews
provide two very different views of the place of proximate causation.

Palsgraf v. Long Island Railroad
Court of Appeals of New York
May 29, 1928
248 N.Y. 339. Helen Palsgraf, Respondent, v. The Long Island
Railroad Company, Appellant. Cardozo, Ch.J. Pound, Lehman
and Kellogg, JJ., concur with Cardozo, Ch.J.; Andrews, J.,
dissents in opinion in which Crane and O’Brien, JJ., concur.
Chief Judge BENJAMIN N. 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 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 explosion 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

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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). “Negligence is the absence of care, according to the
circumstances” (Willes, J., in Vaughan v. Taff Vale Ry. Co., 5 H. &
N. 679, 688). 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 exceptions, survivals for the most part of ancient
forms of liability, where conduct is held to be at the peril of the
actor (Sullivan v. Dunham, 161 N.Y. 290). If no hazard was
apparent to the eye 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 else. “In every 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” (McSherry, C.J., in W. Va. Central R. Co. v.
State, 96 Md. 652, 666). “The ideas of negligence and duty are
strictly correlative” (Bowen, L.J., in Thomas v. Quartermaine, 18 Q.
B. D. 685, 694). 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
been left upon a platform. It seems to be a bundle of
newspapers. It turns out to be a can of dynamite. To the eye of
ordinary vigilance, the bundle is abandoned waste, which may be
kicked or trod on with impunity. Is a passenger at the other end

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of the platform protected by the law against the unsuspected
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 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 been violated, the
interests said to have been invaded, are not even 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. If 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 passed, 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
some one else. 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 eye 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 when 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 explodes 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 show is “a wrong” to
herself, i.e., a violation of her own right, and not merely a wrong
to some one else, nor conduct “wrongful” because unsocial, but

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not “a wrong” to any one. 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
sense that it is unsocial, but wrongful and unsocial in relation to
other travelers, only because the eye 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
obeyed, and risk imports relation; it is risk to another or to
others within the range of apprehension (Seavey, Negligence,
Subjective or Objective, 41 H. L. Rv. 6; Boronkay v. Robinson &
Carpenter, 247 N.Y. 365). This does not mean, of course, that
one who launches a destructive force is always relieved of
liability 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” (Munsey v. Webb, 231 U.S. 150,
156). 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 today, and much oftener in earlier stages of
the law, one acts sometimes at one’s peril (Jeremiah Smith, Tort
and Absolute Liability, 30 H. L. Rv. 328; Street, Foundations of
Legal Liability, vol. 1, pp. 77, 78). 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) These cases aside, wrong
is defined in terms of the natural or probable, at least when
unintentional. 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

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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 (Bowen, L.J., in Thomas v. Quartermaine,
18 Q.B.D. 685, 694). 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. Affront to personality is still the keynote
of the wrong. 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. For
damage to the person, 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. 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. 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 fundamental difference between tort
and crime. 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 question of liability is always anterior to the
question of the measure 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

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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,
however novel or extraordinary. There is room for 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 unforseeable invasion of an interest of another
order, as, e. g., one of bodily security. Perhaps other distinctions
may be necessary. 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.
Judge WILLIAM SHANKLAND ANDREWS, 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 they
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 second hypothesis
we have to inquire only as to the relation between cause and
effect. We deal in terms of proximate cause, not of negligence.

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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 oneself 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. 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 on merely reckless
conduct. But here neither insanity nor infancy lessens
responsibility.
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 been
touched. A licensee or trespasser upon my land has no claim to
affirmative care on my part that the land be made safe. 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. An unborn child may not demand immunity
from personal harm.
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 himself and not merely to
others.” (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 whether 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 happen to be
within the radius of danger but to all who might have been 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

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speaking of the duty of some defendant and discussing
proximate cause in cases where such a discussion is wholly
irrelevant on any other theory. As was said by Mr. Justice
Holmes many years ago, “the 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.” (Spade v. Lynn & Boston R. R. Co., 172 Mass. 488.) 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 does in fact injure. If his act
has a tendency to harm some one, 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 theory that no duty was owing to them. A
husband may be compensated for 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 speak 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 been, I
think it states the law as it should be and as it is.

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The proposition is this. Every one 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 expected to result,
but he also who is in fact injured, even if he be outside what
would generally be thought the danger zone. There needs be
duty due the one complaining but this is not a duty to a
particular individual because as to him harm might be expected.
Harm to some one being the natural result of the act, not only
that one alone, but all those in fact injured may complain. We
have never, I think, held otherwise. Indeed in the Di Caprio case
we said that a breach of a general ordinance defining the degree
of care to be exercised in one’s calling is evidence of negligence
as to every one. We did not limit this statement to those who
might be expected 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 down stream.
We are not liable if all this happened because of some reason
other than the insecure foundation. But when injuries do result
from our unlawful act we are liable for the consequences. It
does not matter that they are unusual, unexpected, unforeseen
and unforseeable. 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 never 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

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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. Each cause brings about future events.
Without each the future would not be the same. Each is
proximate in the sense it is essential. But that is not what we
mean 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
clear 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 effect of an act to the end,
if end there is. Again, however, we may trace it part of the way.
A murder at Serajevo may be the necessary antecedent to an
assassination in London twenty years hence. An overturned
lantern may burn all Chicago. We may follow the fire from the
shed 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 mean 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 other. We may regret that
the line was drawn just where it was, but drawn somewhere it

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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
used were simply indicative of our notions of public policy.
Other courts think differently. But somewhere they 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 sidewalk 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
sidewalk with reasonable safety.
The true theory is, it seems to me, that the injury to C, if in truth
he is to be denied 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 bearing. May have some bearing, for
the problem of proximate cause is not to be solved by any one
consideration.

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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 somewhat 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
least, something without which the event would not happen.
The court must ask itself whether there was a natural and
continuous sequence between 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 attentuated? Is
the cause likely, in the usual judgment of mankind, to produce
the result? Or by the exercise 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. (Bird v. St. Paul
F. & M. Ins. Co., 224 N.Y. 47, where we passed upon the
construction of a contract – but something was also said on this
subject.) 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 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 supposed
it is said, and said correctly, that the chauffeur is liable for the
direct effect of the explosion although he had no reason to
suppose it would follow a collision. “The fact that the injury

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occurred in a different manner than that which might have been
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 bearing upon the decision 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 explosion, 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 need not answer for all that
follows his wrong. We look back to the catastrophe, the fire
kindled by the spark, or the explosion. 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 determine 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 and injured one in the immediate 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 twenty-five or thirty feet. Perhaps less. Except for the
explosion, she would not have been injured. We are told by the
appellant in his brief “it cannot be denied that the explosion 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

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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 been proper upon
the record before us.
The judgment appealed from should be affirmed, with costs.

Questions to Ponder About Palsgraf
A. Who do you think is right? Judge Cardozo or Judge Andrews?
B. Putting legal doctrine aside for a moment, do you think that it
would be fair for Palsgraf to recover from the L.I.R.R.? What goes
into your thinking?
C. If Judge Andrews had carried the day, what do you think would
have happened on remand? That is, assuming the breach of duty was
established and the case had gone to a jury on the issue of proximate
causation, do you think the jury would have found that the guard’s
negligent action was a proximate cause of Palsgraf’s injuries? If you
were on the jury, would you find proximate causation?
A Different Version of the Palsgraf Case
The event that injured Helen Palsgraf was covered by many papers,
including on the front pages of The New York Times, The New York
World, and The New York Herald Tribune. The story that comes out of
these reports paints something of a different picture than what is
found in Judge Cardozo’s opinion.
On Sunday, August 24, 1924, three men were carrying bundles on the
crowded platform at East New York Station. One of them dropped a
large, unwieldy package. The package may have been closely similar

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to an unexploded package later found at the scene; that bundle
contained six firework/explosive devices, each of which was four
inches in diameter and a foot and a half long. The package that
caused the explosion fell between the car and the platform and
detonated with tremendous force, knocking over 30 or 40 people and
setting off a stampede. “There was a terrific roar, followed by several
milder explosions, and a short lived pyrotechnic display,” according
to the Long Island Daily Press.
The New York Times report said that “pieces of the big salute bomb
shot up to the platform.” The blast, which could be heard several
blocks away, according to the paper, damaged the roadbed, ripped
away part of the passenger platform, and overthrew a penny scale
more than 10 feet away.
The damage to the scale, which included its glass smashed and its
mechanism wrecked, was reported by three newspapers. According
to the New York Times and the Long Island Daily Press, the distance
from the detonation site to the scale was more than ten feet.
Thirteen people were reported injured, with three sent to the
hospital. Injuries included cuts and burns. Helen Palsgraf was
reported in the list of injured as suffering from shock.
All of these details and more are compiled in a wonderful law review
article: William H. Manz, Palsgraf: Cardozo's Urban Legend?, 107 DICK.
L. REV. 785 (2003).

More Questions to Ponder About Palsgraf
A. Does the version of facts reported in the newspapers change your
view of whether there was a breach of the duty of care?
B. Do the newspaper accounts change your mind as to whether you
would be inclined to find proximate causation? Do you think this
view of the facts would make a difference to the jury? In what way?
C. To the extent that Judge Cardozo’s recitation of the facts differs
from that in the newspapers, why do you think that is? Here are two
possibilities out of many: Perhaps Judge Cardozo cut the story down
to its essentials, omitting irrelevant detail. Alternatively, perhaps the

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story in the record that came before the Court of Appeals lacked the
detail found in the papers. What other explanations could there be?
D. One seemingly significant fact is how far away Palsgraf was from
the detonation point. Judge Cardozo describes the distance by saying,
“at the other end of the platform, many feet away.” Judge Andrews
describes it as being “some distance away … apparently twenty-five
or thirty feet.” The papers said more than 10 feet. Are these
descriptions consistent? If all of them are plausibly interchangeable,
to what extent do they create different mental pictures?
E. If you could develop some additional detail about the facts that
would help illuminate the breach and/or proximate cause issues in
this case, what would you want to find out?

Various Tests for Proximate Causation
Trying to pin down blackletter rules for proximate causation is a
frustrating task, because there is tremendous variability in how courts
approach proximate causation. Various tests have been articulated,
but it is not easy to say when a certain test applies. The different
formulations are applied in a haphazard fashion in different cases –
frequently even within the same jurisdiction. Thus, it is not always
possible to say that a given state follows a certain test in a certain
kind of case. Nonetheless, it is worth reviewing the different tests,
because doing so will give you a feel for the different ways courts
articulate their analysis of proximate causation questions.
The Direct Test and Intervening Causes
An older test for proximate causation, now largely disused, is the
direct test. Despite its obsolescence, the direct test is helpful to
know, because the concepts and terms it introduces help define more
modern tests.
Today, the touchstone for proximate causation is foreseeability. The
direct test, however, is not concerned with foreseeability at all. With
the direct test, you ask whether the accused act led directly to the
injury without there being an “intervening cause” between the two.
An intervening cause is some additional force or conduct that is
necessary in order to complete the chain of causation between the

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breaching conduct and the injury. The intervening cause could be the
actions of a third party, or it could be some natural event. A good
way to conceptualize the direct test is to start at the harm, and then
work backward to see if there are any forces that served as a more
immediate cause of the harm than the defendant’s conduct.

Example: Cash from Above I – Suppose an elderly man is
proceeding down a sidewalk in the city. On a balcony above,
an obnoxious rich woman decides to start throwing $20 bills
into the air. The flutter of gently descending cash causes a
mad rush on the street, and the man is trampled. He sues the
profligate boor on the balcony who touched off the
stampede. Were the woman’s actions a proximate cause of
the man’s injuries? Under the direct test, the answer is no.
The man will be unable to show proximate causation under
the direct test because the money-grabbers represent an
intervening cause.

Example: Cash from Above II – Same facts as in the
previous paragraph, except that this time, no one else was on
the street, and instead of being trampled, the man was injured
when he slipped on slick piles of banknotes that had
accumulated on the sidewalk. Is proximate causation satisfied
under the direct test? Yes. There is no intervening cause
between the negligent action and the injury, so the direct test
for proximate causation is satisfied.
The leading example of the direct test is In re Polemis & Furness Withy
& Company Ltd., 3 K.B. 560 (Court of Appeal of England 1921). The
freighter Polemis was being unloaded in the port of Casablanca. A
worker dropped a wooden plank into the ship’s hold. The friction of
the plank striking inside the hold caused a spark that ignited a cloud
of accumulated fuel vapor. The ensuing fire completely destroyed the
Polemis. In the case, it was stipulated as unforeseeable that a falling
plank of wood could cause a fire. But there was no question that
dropping the plank was a negligent act – i.e., a breach of the duty of
care. After all, it was easily foreseeable that the falling plank could
have struck and damaged something below by mechanical force. The
court analyzed whether the dropping of the plank was a proximate

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cause of the unforeseeable fire. The Polemis court used the direct test.
Under the direct test, proximate causation was satisfied. Lord Justice
Bankes wrote: “The fire appears to me to have been 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 been reasonably anticipated.”
Suppose that, instead of the facts unfolding as they did in the case,
the plank fell so as to awkwardly wedge itself across a walkway in the
hold. And suppose that another worker came along, tripped over the
plank, and dropped a lantern – igniting a fire. Under those facts, the
direct test would not be satisfied.
There is a philosophical problem with the direct test that is hard to
ignore: Every cause and effect relationship in real-world experience
can be said, at some level, to involve intervening causes. Maybe on
the Polemis it was the wafting of the fuel vapor through the air and the
travel of air molecules around the plank that allowed it to hit at the
perfect angle to make the spark. Clearly, for the direct test to work,
many such would-be intervening causes must be ignored. Selecting
what counts as an intervening cause thus requires some artificial
characterization. One way to state the direct test so that it does not
rely on the troublesome concept of intervening causes, is to use the
concept of a “set stage.” The formulation works like this: If it can be
said that the defendant was acting on a “set stage” – where
everything was lined up and waiting for the defendant’s conduct to
touch off the sequence of events that led to the plaintiff’s injury –
then proximate causation is established under the direct test.
But keep in mind, the direct test is mostly obsolete at this point.
Foreseeability and Harm-Within-the-Risk
Today, foreseeability is the touchstone for proximate causation
analysis. To apply the foreseeability test, you take an imaginary trip
back in time to the point at which the defendant is about to breach
the duty of care. You then look forward and ask, “What might go
wrong here?”

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In the foreseeability view of proximate causation, intervening causes
are not a problem. Consider the Cash From Above I example. Is it
foreseeable that throwing cash off a balcony could cause a stampede?
Yes, it is. Therefore, the foreseeability test for proximate causation is
satisfied.
Perhaps the leading case on using foreseeability to determine
proximate causation is Overseas Tankship (U.K.) Ltd. v. Morts Dock &
Engineering Co, [1961] A.C. 388 (Privy Counsel 1961) – a case which is
better known as “Wagon Mound No. 1.” This case famously rejected
the direct-causation test of Polemis. In Wagon Mound No. 1, the steam
ship Wagon Mound was docked in the Port of Sydney, Australia.
Owned by Caltex – a venture of what is today Chevron – the Wagon
Mound was discharging its cargo of gasoline and taking on oil to use
as fuel for its engines. During this operation, the Wagon Mound spilled
a large amount of fuel oil into the water. Caltex made no attempt to
disperse the oil, and the Wagon Mound soon unberthed and went on
its way. Within a few hours, the Wagon Mound’s oil had spread over a
substantial portion of the bay and had become thickly concentrated
near the property of Morts Dock, a ship-repairing business that was
doing welding that day on the Corrimal. Some bits of molten metal
from the welding operation fell into the water and ignited some
cotton waste that was floating on top of the oil. (Sydney is one of the
main ports for Australia’s cotton exports.) The burning cotton waste
in turn ignited the oil. The ensuing fire burned a large portion of
Morts Dock and the Corrimal.
The court made the finding that “the defendant did not know and
could not reasonably be expected to have known that [fuel oil] was
capable of being set afire when spread on water.” While this seems
unbelievable, the court took pains to note that this finding was based
on “a wealth of evidence” including testimony of one Professor
Hunter, “a distinguished scientist.”
The court discussed Polemis extensively and rejected its direct-test
view of proximate causation, positing instead that foreseeability is
key. Viscount Simonds wrote for the court, “[T]he essential factor in
determining liability is whether the damage is of such a kind as the
reasonable man should have foreseen~. It is a departure from this

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sovereign principle if liability is made to depend solely on the damage
being the ‘direct’ or ‘natural’ consequence of the precedent act. Who
knows or can be assumed to know all the processes of nature? But if
it would be wrong that a man should be held liable for damage
unpredictable by a reasonable man because it was ‘direct’ or ‘natural’,
equally it would be wrong that he should escape liability, however
‘indirect’ the damage, if he foresaw or could reasonably foresee the
intervening events which led to its being done~. Thus foreseeability
becomes the effective test.”
Since it was held unforeseeable that spilling a large quantity of fuel oil
could lead to a destructive fire, Caltex won for want of proximate
causation.
Another, related test that can be applied is the harm-within-the-risk
test. Here, proximate cause is a question of germaneness: Is the kind
of harm suffered by the plaintiff the kind that made the defendant’s
action negligent in the first place? The harm-within-the-risk test can
be thought of as a way of focusing and re-articulating the
foreseeability test.
The Polemis case illustrates how the foreseeability test and the harmwithin-the-risk test can reach a different result than the direct test.
The fire aboard the Polemis was not foreseeable. Likewise, an inferno
is not the kind of harm that makes it risky to drop a wooden plank
into a cargo hold. Thus, in the Polemis case, the plaintiff could show
proximate causation under the direct test, but would not have been
able to under the foreseeability test or the harm-within-the-risk test.
Under the Polemis facts, the direct test is more generous for plaintiffs
than the foreseeability test or the harm-within-the-risk test.
The Cash From Above I example shows that, under different facts, the
opposite may be true – the foreseeability test and harm-within-therisk test can be more generous for plaintiffs than the direct test. It is
foreseeable that throwing money into the air will cause a stampede,
and the risk of stampede is what makes such boorish behavior risky.
Thus the foreseeability test is satisfied. The direct test is not satisfied,
however, since the people rushing in represent intervening causes.

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As you can see, the foreseeability test and the harm-within-the-risk
test are both quite different from the direct test. But, you may be
wondering, is there any practical difference between the foreseeability
test and harm-within-the-risk test? That is, will the two tests ever
produce different results? The answer is yes, although rarely.
Most of the time, the foreseeability test and the harm-within-the-risk
test will yield the same results. A worker spills a bucket of soapy
water onto a public sidewalk. A pedestrian comes along and slips,
suffering a broken wrist. Is it foreseeable that a person would slip on
a puddle of soapy water? Yes. Is slipping the kind of harm that makes
it dangerous to spill soapy water? Yes.
To illustrate the potential difference between the foreseeability test
considered alone and its harm-within-the-risk elaboration, let’s take
the facts from Berry v. Sugar Notch Borough, 191 Pa. 345 (Pa. 1899). On
a violently windy day, a trolley was speeding down the street.
Suddenly a large chestnut tree fell on the trolley. The plaintiff, a
trolley passenger, was injured. The tree – probably already weak with
disease – fell when it did on account of the wind. The trolley,
meanwhile, was under the tree at the moment if fell because of the
speed the trolley was travelling. (The case does not say exactly how
fast the trolley was travelling, except that it was considerably in excess
of the modest speed limit of eight miles per hour. And while this rate
of speed does not shock the conscience from a 21st Century
perspective, we can stipulate that it was negligently fast for a trolley in
the late 1800s.) The question is whether the trolley’s speeding was a
proximate cause of the injury suffered by the plaintiff. Now, it is clear
that the speeding did not cause the tree to fall. The tree was going to
fall when it did, regardless of what the trolley was doing. On the
other hand, there is no question that if the trolley had been going at a
slower, safer speed, it would not have been hit by the tree. After all, if
the trolley had been going slower, it would not have gotten to the
place where the tree fell at the time it fell.
In trying to decide the issue of proximate causation here, we see that
we get different results depending on whether we use the
foreseeability test or the harm-within-the-risk test.

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For the foreseeability test, we ask the foreseeability question: Was the
harm foreseeable? In this case, we must ask whether it was
foreseeable that a tree would fall on the trolley if it drove too fast.
This is a hard question to answer. In some sense it is foreseeable.
Certainly it is imaginable. Trees do fall in windstorms. So the
foreseeability test appears to be passed, although in way that feels
unsatisfying.
Now let’s ask the harm-within question: Is the possibility of getting
hit by a falling tree the sort of thing that makes it risky to drive a
trolley too fast? Certainly not.
So in the Sugar Notch case, the foreseeability test provides a halting
yes or is equivocal. The harm-within-the-risk test, however, provides
a clear answer of no.
Objects of Foreseeability
The foreseeability concept does a lot to illuminate what is meant with
the doctrine of proximate causation. But foreseeability needs some
additional elaboration. In particular, we need to scrutinize exactly
what is being focused on in the foreseeability inquiry. Is proximate
causation wanting if the plaintiff is unforeseeable? Or what if it is the
type, manner, or extent of harm that is unforeseeable?

Unforeseeable Plaintiffs
The general rule is that if the plaintiff is unforeseeable, then
proximate causation will not be satisfied. That is, if it was
unforeseeable that the plaintiff could have been injured by the
accused conduct, then the defendant wins because proximate
causation fails.
Unforeseeable Type of Harm
Now, let us assume we have a foreseeable plaintiff – meaning a
plaintiff who could be foreseeably harmed by the defendant’s
conduct, but let’s suppose that the type of harm suffered is a surprise.
Does the unforeseeability of the type of harm cause a failure of
proximate causation? Probably the best that can be said about this is
that there is really no general rule; instead, courts look at this on a
case-by-case basis.

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Example: Bonked by a Shotgun – Suppose the defendant
negligently leaves an old rifle, loaded and with the safety off,
lying in the backyard of her house with a group of three-yearold children. When one kid plays with it, banging it against a
rock, the wooden stock comes apart and drives splinters deep
into another child’s hand, causing nerve damage. Some harm
in such a scenario is foreseeable – in particular, a gunshot
wound. But nerve damage caused by splinters? That is not
foreseeable. So, is there proximate causation? Courts would
differ.

Unforeseeable Manner of Harm
Let’s now assume that we have a foreseeable plaintiff, injured by a
foreseeable type of harm, but the manner of the harm is somehow
surprising and unforeseeable. The general rule in such cases is that an
unforeseeable manner of harm does not preclude recovery on the
basis of proximate causation. There is, however, some give in the
doctrine. If the manner of harm is truly extraordinary then the
proximate causation limitation might be engaged.

Example:

The

Lucky/Unlucky

Motorist

–

The
defendant’s negligent driving causes the plaintiff’s car to skid
off the road. Luckily, the plaintiff is fine. But the car is stuck
in the mud. Although the car is undamaged, the plaintiff
cannot drive it out and will need to seek help. Walking to a
nearby town to get help, the plaintiff is struck by a car driven
by a third person. In a suit by the plaintiff against the driver
who rode the plaintiff’s car off the road, is proximate
causation satisfied? The plaintiff was clearly foreseeable, since
driving a car negligently exposes nearby motorists and
pedestrians to danger. The type of harm – getting struck by a
car – is perfectly foreseeable. The manner of harm, however,
is unforeseeable. Who would have guessed that the plaintiff
would be hurt not by the defendant’s car, but by someone
else’s car? Yet a court could find proximate causation to be
established. Since the plaintiff and the type of harm were
foreseeable, and since the manner of harm was not truly
extraordinary, proximate cause may be satisfied.

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Unforeseeable Extent of Harm
What if it is the extent of the harm that is unforeseeable? Suppose
someone in the cafeteria, horsing around, throws a small bottled
water to a friend. A bystander is struck and killed. Did the thrower
proximately cause the bystander’s death? The general rule is that an
unforeseeable extent of harm will not cause a failure of proximate
causation. Alternatively stated, under the eyes of the law, the extent
of the harm, no matter how great, is considered to be foreseeable –
even if it really is not. This doctrine is called the eggshell-plaintiff
rule, named for a hypothetical plaintiff who has a skull as thin as an
eggshell, for whom a slight rap on the head could cause massive brain
damage. This doctrine is quite strictly applied in personal injury cases.
With property damage, however, there is some loosening of the rule,
so that foreseeability and harm-within-the-risk tests might be applied
to provide a proximate-cause limitation on liability – even in cases
where the causal connection is tight.
Superseding Causes
Since the direct test of proximate causation is no longer the
prevailing law, intervening causes are generally not a problem.
However, a remnant of the direct test remains in the doctrine
regarding “superseding causes.” By definition, a superseding cause
is an intervening cause that breaks the proximate-cause relationship.
The term is conclusory – a court does not determine whether or not
something is a superseding cause in order to find out whether it
breaks the proximate-cause connection. Rather, a court decides
whether or not an intervening cause breaks the proximate-cause
relationship, and, if it does, then it is dubbed a superseding cause.
The doctrine of superseding cause comes up when, after the
defendant has undertaken some negligent conduct, something else
comes along that gives the court or jury the sense that the something
else is “the” cause of the plaintiff’s injury. Technically, as we
discussed with regard to actual causation, there is no such thing as
“the” cause. Every event has a virtually infinite number of causes, so
no single one can be “the” cause. Nonetheless, the doctrine of

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superseding cause is invoked when circumstances exist such that it
just seems wrong to leave the defendant holding the bag.
A classic example comes from the facts of Loftus v. Dehail, 133 Cal.
214 (Cal. 1901). In that case, Isaac and Alice Dehail owned a lot in a
busy section of Los Angeles. A house had been standing on the lot,
but the Dehails had it demolished, leaving an open cellar. The
Dehails left the lot in this condition, making no effort to fence off
the open pit. Seven-year-old Bessie May Loftus was injured when she
fell in. The court held that the Dehails’ failure to fence in the pit was
not “the” proximate cause. Why? It turns out Bessie was pushed. The
superseding cause in this instance was Bessie’s four-year-old brother
who, “in a fit of temper,” tipped her into the pit. “His act was the
proximate cause of the injury,” the court concluded. (It should be
noted that while Loftus is a good example of the concept, the Loftus
case itself almost certainly could come out differently today.)
Jurisdictions differ with regard to what kinds of actions can rise to
the level of a superseding cause. There are some general observations
that can be made, however. First, negligence is not normally
superseded by someone else’s negligence. Suppose a careless driver,
who has passenger in the car, loses control on a mountain road and
skids to a stop such that the car is teetering over the edge of a cliff. A
careless trucker, driving too fast, fishtails around the bend and nicks
the car, causing it to tip off the cliff. The passenger is injured by the
fall. The carelessness the driver of the car will be deemed a proximate
cause of the injury, notwithstanding the intervening force of the
fishtailing truck.
A particular recurring situation is where injuries are made worse by
medical malpractice committed in the course of the treatment of the
original injury. The rule on this is quite clear: Medical malpractice is
always considered foreseeable. In other words, incompetent medical
treatment will not be considered a superseding force. Suppose a
careless restaurant worker burned a patron while flambéing cherries
tableside for a dessert dish. If the injuries had been treated
competently, the patron would have recovered entirely in a couple
weeks. Unfortunately the patient received substandard burn care,
which led to an infection that necessitated an amputation. The

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restaurant’s carelessness in this case will be considered a proximate
cause of the amputation injury. The same applies to ambulance
accidents.
On the other hand, criminal interveners are usually superseding
causes. If a sociopath breaks into the hospital and puts poison in an
IV, the inept flambéer will not be liable for the poisoning. Note that
there is an important exception to the rule that criminal intervenors
are superseding causes: If an intervening criminal act was foreseeable,
or if the defendant otherwise had a duty to protect the plaintiff from
a criminal act, then the criminal act will not be considered a
superseding cause. If a negligently installed door lock on an
apartment in high-crime area allows an assailant to enter a plaintiff’s
apartment, the criminal act is not considered a superseding cause, and
the landlord’s negligence will be held a proximate cause of the
plaintiff’s injury.
Case: Ryan v. New York Central Railroad
The following case provides an additional venue to think about
proximate causation issues. It is also a fascinating vehicle for thinking
about the interaction of law and industrial progress.

Ryan v. New York Central Railroad
Court of Appeals of New York
March 1866
35 N.Y. 210. James Ryan v. New York Central Railroad
Company. Hunt, J., De Grey, Ch. J.
Judge WARD HUNT:
On the 15th day of July, 1854, in the city of Syracuse, the
defendant, by the careless management, or through the
insufficient condition, of one of its engines, set fire to its
woodshed, and a large quantity of wood therein. The plaintiff’s
house, situated at a distance of one hundred and thirty feet from
the shed, soon took fire from the heat and sparks, and was
entirely consumed, notwithstanding diligent efforts were made
to save it. A number of other houses were also burned by the
spreading of the fire. The plaintiff brings this action to recover

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from the railroad company the value of his building thus
destroyed. The judge at the Circuit nonsuited the plaintiff, and
the General Term of the fifth district affirmed the judgment.
The question may be thus stated: A house in a populous city
takes fire, through the negligence of the owner or his servant;
the flames extend to and destroy an adjacent building: Is the
owner of the first building liable to the second owner for the
damage sustained by such burning?
It is a general principle that every person is liable for the
consequences of his own acts. He is thus liable in damages for
the proximate results of his own acts, but not for remote
damages. It is not easy at all times to determine what are
proximate and what are remote damages. In Thomas v. Winchester
(2 Seld., 408) Judge Ruggles defines the damages for which a
party is liable, as those which are the natural or necessary
consequences of his acts. Thus, the owner of a loaded gun, who
puts it in the hands of a child, by whose indiscretion it is
discharged, is liable for the injury sustained by a third person
from such discharge (5 Maule & Sel., 198.) The injury is a
natural and ordinary result of the folly of placing a loaded gun in
the hands of one ignorant of the manner of using it, and
incapable of appreciating its effects. The owner of a horse and
cart, who leaves them unattended in the street, is liable for an
injury done to a person or his property, by the running away of
the horse, for the same reason. The injury is the natural result of
the negligence. If the party thus injured had, however, by the
delay or confinement from his injury, been prevented from
completing a valuable contract, from which he expected to make
large profits, he could not recover such expected profits from
the negligent party, in the cases supposed. Such damages would
not be the necessary or natural consequences, nor the results
ordinarily to be anticipated, from the negligence committed. (6
Hill, 522; 13 Wend., 601; 3 E. D. Smith, 144.) So if an engineer
upon a steamboat or locomotive, in passing the house of A., so
carelessly manages its machinery that the coals and sparks from
its fires fall upon and consume the house of A., the railroad
company or the steamboat proprietors are liable to pay the value
of the property thus destroyed. Thus far the law is settled and

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the principle is apparent. If, however, the fire communicates
from the house of A. to that of B., and that is destroyed, is the
negligent party liable for his loss? And if it spreads thence to the
house of C., and thence to the house of D., and thence
consecutively through the other houses, until it reaches and
consumes the house of Z., is the party liable to pay the damages
sustained by these twenty-four sufferers? The counsel for the
plaintiff does not distinctly claim this, and I think it would not
be seriously insisted that the sufferers could recover in such
case. Where, then, is the principle upon which A. recovers and
Z. fails?
It has been suggested that an important element exists in the
difference between an intentional firing and a negligent firing
merely; that when a party designedly fires his own house or his
own fallow land, not intending, however, to do any injury to his
neighbor, but a damage actually results, that he may be liable for
more extended damages than where the fire originated in
accident or negligence. It is true that the most of the cases
where the liability was held to exist, were cases of an intentional
firing. The case, however, of Vaughn v. Menlove (32 Eng. C. L.,
613) was that of a spontaneous combustion of a hay-rick. The
rick was burned, the owner’s buildings were destroyed, and
thence the fire spread to the plaintiff’s cottage, which was also
consumed. The defendant was held liable. Without deciding
upon the importance of this distinction, I prefer to place my
opinion upon the ground that, in the one case, to wit, the
destruction of the building upon which the sparks were thrown
by the negligent act of the party sought to be charged, the result
was to have been anticipated the moment the fire was
communicated to the building; that its destruction was the
ordinary and natural result of its being fired. In the second, third
or twenty-fourth case, as supposed, the destruction of the
building was not a natural and expected result of the first firing.
That a building upon which sparks and cinders fall should be
destroyed or seriously injured must be expected, but that the fire
should spread and other buildings be consumed, is not a
necessary or an usual result. That it is possible, and that it is not
unfrequent, cannot be denied. The result, however, depends, not

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upon any necessity of a further communication of the fire, but
upon a concurrence of accidental circumstances, such as the
degree of the heat, the state of the atmosphere, the condition
and materials of the adjoining structures and the direction of the
wind. These are accidental and varying circumstances. The party
has no control over them, and is not responsible for their
effects.
My opinion, therefore, is, that this action cannot be sustained,
for the reason that the damages incurred are not the immediate
but the remote result of the negligence of the defendants. The
immediate result was the destruction of their own wood and
sheds; beyond that, it was remote.
Judgment affirmed.

Thoughts About Ryan in Historical Context
The Ryan case has never been explicitly overruled by the New York
courts, although in 1890 a trial court stated that the authority of Ryan
had been “considerably shaken by subsequent cases.” Nary v. New
York, O. & W. Ry. Co., 55 Hun 612, 9 N.Y.S. 153 (Sup. Ct. 1890).
One way of viewing Ryan is that it represents a particular historical
moment when the industrial revolution was rapidly building wealth
for society, and the courts felt an urge to protect firms, such as
railroads, that were the engines of progress. Justice Leibson of the
Supreme Court of Kentucky wrote in 1984, “It may well be that the
19th century judicial mind perceived of the need for courts to tilt the
scales of justice in favor of defendants ‘to keep the liabilities of
growing industry within some bounds.’” Hilen v. Hays, 673 S.W.2d
713, 718 (Ky.1984), quoting Prosser, The Law of Torts.
If courts once regularly bent the law to protect industry, Palsgraf may
represent a point of transition, when the courts became less solicitous
of corporate defendants, who, it might be thought, were capable of
fending for themselves.
Some people would say that today’s era is one of renewed judicial
deference to corporate interests. Others, of course, have the exact
opposite view.

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9. Existence of an Injury
“No harm, no foul.”
– Chick Hearn, sportscaster for the L.A. Lakers, circa 1960–2000

In General
The existence of an injury is an element of the prima facie case for
negligence. Even if a defendant had a duty and breached a duty, there
is no negligence claim unless there is some compensable harm.
Another way of stating the same idea is that “damages” is an essential
element of the prima facie case for negligence.
Not all causes of action require an injury or damages. For instance,
the intentional tort of trespass to land has no such requirement. If
someone trespasses on your land, you can sue them whether or not
they caused you any sort of loss. So, if someone trespasses by walking
on your land, and then walks off, having not disturbed even a stalk of
grass, you can win a lawsuit against them. In such a lawsuit, you
would be entitled to “nominal damages” – meaning damages in name
only – commonly a single dollar. So why would anyone pursue such a
lawsuit? Except under rare circumstances, there’s no point. Yet, if
they want to, they can.
Negligence is not like that. There must be damages in order to form a
prima facie case. And the damages must be of a certain kind.
Generally speaking, they must be compensatory damages occasioned
by physical damage “to person or property,” meaning to a person’s
body or a person’s tangible property.
In the context of damages, “compensatory” means damages that
compensate someone for an actual loss. It is not possible, for
instance, to sue someone for negligence just out of a desire to punish
them for being careless. Punitive damages will not suffice to make
out a prima facie case for negligence. (Assuming you have
compensatory damages, and thus can make out a prima facie case for
negligence, you can then argue for punitive damages as a way of

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increasing the amount of the award – but that’s a subject for later in
this book.)
The requirement that the damages be for physical injury to the
person or property excludes many possible claims. Notably, mental
anguish, by itself, is not the kind of injury that is sufficient to
establish a negligence case. Also, purely economic damages will not
suffice. So, if someone’s carelessness causes you to not get a job,
then, without more, there is no negligence case. Now, if you lose
your job because you are in the hospital, and if you are in the hospital
thanks to a car accident for which you can establish all the elements
of negligence, then you can recover for both the lost job as well as
the hospital bills. But without the physical injury that sends you to
the hospital, you have no case in negligence.
The doctrine regarding the existence of a compensable injury in the
negligence case is sometimes put under the heading of whether there
is a duty of care – that is, the first prima facie element of negligence
we dealt with in this book. Whether courts look at it as a question of
duty or as a separate element of the negligence case, the point is that
without proving harm – and harm of the right kind – the plaintiff has
not put forth a complete claim.
It should be emphasized that, as a practical matter, almost no one
would want to pursue a lawsuit unless there is the prospect of
substantial damages. Lawsuits are expensive, after all. The amount of
damages, however, is a subject for a later chapter. For now, the
question is whether there is an injury sufficient to establish a prima
facie case.
Bear in mind that most of the time the existence of a compensable
injury is a slamdunk in a negligence case. If it’s not, then the only
remaining questions are usually factual, not legal. For instance, a
plaintiff in an automobile accident case might allege a “soft tissue
injury” – one in which no bones were broken. How to prove such an
injury can be a thorny problem for plaintiffs’ attorneys in the trial
court. But such situations do not present any tricky matters of legal
doctrine. This chapter concerns the relatively rare situations in which
there is a legal question on the matter of the existence of an injury.

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Ahead, we will first look at so-called “loss of a chance” situations, in
which there is room to argue whether an injury actually exists. Then
we will look briefly at cases of pure economic harm and cases of pure
emotional harm.

Loss-of-a-Chance Situations
The following case looks at a situation in which the injury inquiry
turns into something of a philosophical question – where the injury,
if there is one, is a change in the odds.
Case: Herskovits v. Group Health
The following case looks at an unusual but occasionally recurring
situation in which the existence of an injury becomes a
philosophically challenging question, one that is not answerable
merely by uncovering facts.

Herskovits v. Group Health
Supreme Court of Washington
May 26, 1983
99 Wn.2d 609. Edith E. Herskovits, as Personal Representative,
Appellant, v. Group Health Cooperative of Puget Sound,
Respondent. No. 48034-6. En Banc. Dore, J. Rosellini, J.,
concurs. Pearson, J. (concurring). Williams, C.J., and Stafford
and Utter, JJ., concur with Pearson, J. Brachtenbach, J.
(dissenting). Dimmick, J., concurs with Brachtenbach, J.
Dolliver, J. (dissenting).
Justice FRED H. DORE:
This appeal raises the issue of whether an estate can maintain an
action for professional negligence as a result of failure to timely
diagnose lung cancer, where the estate can show probable
reduction in statistical chance for survival but cannot show
and/or prove that with timely diagnosis and treatment, decedent
probably would have lived to normal life expectancy.
Both counsel advised that for the purpose of this appeal we are
to assume that the respondent Group Health Cooperative of
Puget Sound and its personnel negligently failed to diagnose
Herskovits’ cancer on his first visit to the hospital and

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proximately caused a 14 percent reduction in his chances of
survival. It is undisputed that Herskovits had less than a 50
percent chance of survival at all times herein.~
The complaint alleged that Herskovits came to Group Health
Hospital in 1974 with complaints of pain and coughing. In early
1974, chest X-rays revealed infiltrate in the left lung. Rales and
coughing were present. In mid-1974, there were chest pains and
coughing, which became persistent and chronic by fall of 1974.
A December 5, 1974, entry in the medical records confirms the
cough problem. Plaintiff contends that Herskovits was treated
thereafter only with cough medicine. No further effort or
inquiry was made by Group Health concerning his symptoms,
other than an occasional chest X-ray. In the early spring of 1975,
Mr. and Mrs. Herskovits went south in the hope that the warm
weather would help. Upon his return to the Seattle area with no
improvement in his health, Herskovits visited Dr. Jonathan
Ostrow on a private basis for another medical opinion. Within 3
weeks, Dr. Ostrow’s evaluation and direction to Group Health
led to the diagnosis of cancer. In July of 1975, Herskovits’ lung
was removed, but no radiation or chemotherapy treatments
were instituted. Herskovits died 20 months later, on March 22,
1977, at the age of 60.~
Other jurisdictions have~ generally [held] that unless the plaintiff
is able to show that it was more likely than not that the harm was
caused by the defendant’s negligence, proof of a decreased
chance of survival is not enough to take the proximate cause
question to the jury. These courts have concluded that the
defendant should not be liable where the decedent more than
likely would have died anyway.
The ultimate question raised here is whether the relationship
between the increased risk of harm and Herskovits’ death is
sufficient to hold Group Health responsible. Is a 36 percent
(from 39 percent to 25 percent) reduction in the decedent’s
chance for survival sufficient evidence of causation to allow the
jury to consider the possibility that the physician’s failure to
timely diagnose the illness was the proximate cause of his death?
We answer in the affirmative. To decide otherwise would be a

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blanket release from liability for doctors and hospitals any time
there was less than a 50 percent chance of survival, regardless of
how flagrant the negligence.~
[O]nce a plaintiff has demonstrated that defendant’s acts or
omissions~ have increased the risk of harm to another, such
evidence furnishes a basis for the fact finder to go further and
find that such increased risk was in turn a substantial factor in
bringing about the resultant harm. The necessary proximate
cause will be established if the jury finds such cause. It is not
necessary for a plaintiff to introduce evidence to establish that
the negligence resulted in the injury or death, but simply that the
negligence increased the risk of injury or death. The step from
the increased risk to causation is one for the jury to make.~
Where percentage probabilities and decreased probabilities are
submitted into evidence, there is simply no danger of
speculation on the part of the jury. More speculation is involved
in requiring the medical expert to testify as to what would have
happened had the defendant not been negligent.~
We reject Group Health’s argument that plaintiffs must show that
Herskovits “probably” would have had a 51 percent chance of
survival if the hospital had not been negligent. We hold that
medical testimony of a reduction of chance of survival from 39
percent to 25 percent is sufficient evidence to allow the
proximate cause issue to go to the jury.
Causing reduction of the opportunity to recover (loss of chance)
by one’s negligence, however, does not necessitate a total
recovery against the negligent party for all damages caused by
the victim’s death. Damages should be awarded to the injured
party or his family based only on damages caused directly by
premature death, such as lost earnings and additional medical
expenses, etc.
We reverse the trial court and reinstate the cause of action.
Justice JAMES M. DOLLIVER, dissenting:
The majority states the variations from 39 percent to 25 percent
in the decedent’s chance for survival are sufficient evidence to
“consider the possibility” that the failure of the physician to

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diagnose the illness in a timely manner was the “proximate cause
of his death.” This reasoning is flawed. Whether the chances
were 25 percent or 39 percent decedent would have survived for
5 years, in both cases, it was more probable than not he would
have died. Therefore, I cannot conclude that the missed
diagnosis was the proximate cause of death when a timely
diagnosis could not have made it more probable the decedent
would have survived. “‘It is legally and logically impossible for it
to be probable that a fact exists, and at the same time probable
that it does not exist.’” Cooper v. Sisters of Charity, Inc., 27 Ohio St.
2d 242, 253 (1971).
Justice VERNON ROBERT PEARSON, concurring:
I agree with the majority that the trial court erred in granting
defendant’s motion for summary judgment. I cannot, however,
agree with the majority’s reasoning in reaching this decision.~ In
an effort to achieve a fair result by means of sound analysis, I
offer the following approach.~
The issue before the court, quite simply, is whether Dr.
Ostrow’s testimony~ established that the act complained of (the
alleged delay in diagnosis) “probably” or “more likely than not”
caused Mr. Herskovits’ subsequent disability. In order to make
this determination, we must first define the “subsequent
disability” suffered by Mr. Herskovits. Therein lies the crux of
this case, for it is possible to define the injury or “disability” to
Mr. Herskovits in at least two different ways. First, and most
obviously, the injury to Mr. Herskovits might be viewed as his
death. Alternatively, however, the injury or disability may be
seen as the reduction of Mr. Herskovits’ chance of surviving the
cancer from which he suffered.
Therefore, although the issue before us is primarily one of
causation, resolution of that issue requires us to identify the
nature of the injury to the decedent. Our conception of the
injury will substantially affect our analysis. If the injury is
determined to be the death of Mr. Herskovits, then under the
established principles of proximate cause plaintiff has failed to
make a prima facie case. Dr. Ostrow was unable to state that
probably, or more likely than not, Mr. Herskovits’ death was

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caused by defendant’s negligence. On the contrary, it is clear
from Dr. Ostrow’s testimony that Mr. Herskovits would have
probably died from cancer even with the exercise of reasonable
care by defendant. Accordingly, if we perceive the death of Mr.
Herskovits as the injury in this case, we must affirm the trial
court, unless we determine that it is proper to depart
substantially from the traditional requirements of establishing
proximate cause in this type of case.
If, on the other hand, we view the injury to be the reduction of
Mr. Herskovits’ chance of survival, our analysis might well be
different. Dr. Ostrow testified that the failure to diagnose cancer
in December 1974 probably caused a substantial reduction in
Mr. Herskovits’ chance of survival. The~ standard of proof is
therefore met.
~I

turn to consider how other jurisdictions have dealt with
similar cases.
One approach, and that urged by defendant, is to deny recovery
in wrongful death cases unless the plaintiff establishes that
decedent would probably have survived but for defendant’s
negligence. This approach is typified by Cooper v. Sisters of Charity,
Inc., 27 Ohio St. 2d 242 (1971). The court in that case affirmed a
directed verdict for defendant where the only evidence of
causation was that decedent had a chance “maybe some place
around 50%” of survival had defendant not been negligent. The
court said: “In an action for wrongful death, where medical
malpractice is alleged as the proximate cause of death, and
plaintiff’s evidence indicates that a failure to diagnose the injury
prevented the patient from an opportunity to be operated on,
which failure eliminated any chance of the patient’s survival, the
issue of proximate cause can be submitted to a jury only if there
is sufficient evidence showing that with proper diagnosis,
treatment and surgery the patient probably would have
survived.”
On the other hand, plaintiff cites seven cases in support of her
position.~ To summarize, in Hicks v. United States the decedent
was deprived of a probability of survival; in Jeanes v. Milner, 428
F.2d 598 (8th Cir. 1970), the decedent’s chance of survival was

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reduced from 35 percent to 24 percent; in O’Brien v. Stover, 443
F.2d 1013 (8th Cir. 1971), the decedent’s 30 percent chance of
survival was reduced by an indeterminate amount; in McBride v.
United States, 462 F.2d 72 (9th Cir. 1972), the decedent was
deprived of the probability of survival; in Kallenberg v. Beth Israel
Hosp., 45 A.D.2d 177 (N.Y. App. Div. 1974), the decedent was
deprived of a 20 percent to 40 percent chance of survival; in
Hamil v. Bashline the decedent was deprived of a 75 percent
chance of survival; and in James v. United States, 483 F. Supp. 581
(N.D. Cal. 1980), the decedent was deprived of an indeterminate
chance of survival, no matter how small.
The three cases where the chance of survival was greater than 50
percent (Hicks, McBride, and Hamil) are unexceptional in that
they focus on the death of the decedent as the injury, and they
require proximate cause to be shown beyond the balance of
probabilities. Such a result is consistent with existing principles
in this state, and with cases from other jurisdictions cited by
defendant.
The remaining four cases allowed recovery despite the plaintiffs’
failure to prove a probability of survival. Three of these cases
(Jeanes, O’Brien, and James) differ significantly from the Hicks,
McBride, and Hamil group in that they view the reduction in or
loss of the chance of survival, rather than the death itself, as the
injury. Under these cases, the defendant is liable, not for all
damages arising from the death, but only for damages to the
extent of the diminished or lost chance of survival. The fourth
of these cases, Kallenberg, differs from the other three in that it
focuses on the death as the compensable injury. This is clearly a
distortion of traditional principles of proximate causation. In
effect, Kallenberg held that a 40 percent possibility of causation
(rather than the 51 percent required by a probability standard)
was sufficient to establish liability for the death. Under this
loosened standard of proof of causation, the defendant would
be liable for all damages resulting from the death for which he
was at most 40 percent responsible.
My review of these cases persuades me that the preferable
approach to the problem before us is that taken (at least

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implicitly) in Jeanes, O’Brien, and James. I acknowledge that the
principal predicate for these cases is the passage of obiter
dictum in Hicks, a case which more directly supports the
defendant’s position. I am nevertheless convinced that these
cases reflect a trend to the most rational, least arbitrary, rule by
which to regulate cases of this kind.~
These reasons persuade me that the best resolution of the issue
before us is to recognize the loss of a less than even chance as
an actionable injury. Therefore, I would hold that plaintiff has
established a prima facie issue of proximate cause by producing
testimony that defendant probably caused a substantial
reduction in Mr. Herskovits’ chance of survival.~
I would remand to the trial court for proceedings consistent
with this opinion.

Questions to Ponder About Herskovits
A. Do you agree with the implication of Justice Dolliver’s dissent that
Justice Dore’s doctrinal prescription is fundamentally illogical?
B. According to both Justice Dore and Justice Pearson, the
Herskovits estate should be able to prevail against Group Health
despite it being the case that Mr. Herskovits would likely have died
regardless. But the two justices look at the issue as funneling down to
different elements of the prima facie case. For Justice Dore, this is a
matter of causation. (Although Justice Dore says “proximate
causation,” he is actually referring to a question posed by the but-for
test of actual causation.) For Justice Pearson, this is a question of the
existence of an injury. Which do you think is the better way to look at
it and why?

The Thorny Question of Calibrating Damages in Herskovits,
and Some More Questions to Ponder
Assuming there should be recovery, what should be the measure of
damages? Justice Dore’s opinion is ambiguous on this point.
We will discuss the question of the measurement of compensatory
damages in general later in the book. But the Herskovits case presents

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a unique question about calibrating damages, so it’s worth pondering
for a moment how it might be done.
Perhaps the simplest thing that a court could do is to award the
Herskovits estate damages in the same way as would be done for a
“normal” wrongful death case. So if Mr. Herskovits had been killed
by a negligently dropped anvil, for instance, and if the damages in
that case were $1 million, then the damages in this case would be
$1 million as well. Let’s call this the unreduced approach.
Justice Dore’s opinion, however, seems to invite some reduction in
the amount of damages, although his opinion is ambiguous on how
this would be accomplished.
Let’s consider some alternatives of how damages could be reduced.
One approach – let’s call this the percentage-difference approach – would
be to start with the number that would be the compensatory damages
for death in a “normal” case. Let’s again assume that is $1 million.
Based on expert testimony, Mr. Herskovits’s chance of survival
would have been 39% with a timely diagnosis, 25% without. So we
could say that since the best-case scenario was 39%, then the baseline
figure for damages should be 39% of $1 million, or $390,000. Given
the negligent delay in diagnosis, the chance of survival dropped to
25%, which is equivalent to $250,000. The difference between the
baseline case and the negligence case is $140,000. (Notice that this is
the same as subtracting 25% from 39%, which gives 14%, and then
multiplying this by $1 million.) So, under this approach, the measure
of damages would be $140,000.
Another approach would be to ask the hypothetical question of how
much would someone be willing to pay for the increased chance of
survival. In this approach, we don’t worry at all about the $1 million
baseline figure. Let’s call this the what-would-you-pay approach. We know
that the negligence scenario left Mr. Herskovits with a 25% chance of
survival. Had he been diagnosed earlier, he would have had a 39% of
survival. From Mr. Herskovits’s perspective, if he could somehow
magically pay for the removal of the negligence, his chances of
surviving would increase 56%. (That is, 39% is 56% higher than

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25%.) So the question is, how much would a person pay for a 56%
increased chance of surviving cancer?
Another approach – we can call this the unguided approach – would be
to just tell the jury that they can reduce damages as they find
appropriate.
The trial court could dictate an approach in the form of jury
instructions. Or, in the absence of specific instructions, the attorneys
could argue these approaches to the jury.
Some questions to ponder on these approaches:
A. Should damages in cases such as Herskovits be susceptible to
reduction?
B. Which of the approaches outlined above seems, as an abstract
matter, to be more fair?
C. Can you think of any other ways to reduce damages?
D. If you were the court, would you dictate one of these measures of
damages, or would you leave the matter to the attorneys’ arguments
before the jury and the jury’s deliberations?
E. If you were the plaintiff’s attorney, and the jury instructions said
nothing about the question of reducing damages, what would you
argue to the jury about damages?
F. Assuming the judge instructed the jury that damages must be
reduced, but didn’t specify how, what would you argue to the jury?
G. If you were the defendant’s attorney, and the jury instructions said
nothing about the question of reducing damages, what would you
argue to the jury about damages?
Now here’s a more philosophical question:
H. If it is sensible to reduce damages in a Herskovits-type situation,
then why not in “normal” negligence cases? Remember that the
dilemma of Herskovits is that if the injury is death, then the estate
cannot satisfy the but-for test by a preponderance of the evidence in
order to prove actual causation, since the death probably would have
happened even if the breach of the duty of care (the “negligence”)

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had not happened. If it has been shown that it was slightly more
likely than not that an earlier diagnosis would have saved Mr.
Herskovits (say 50.0000001%), then the defendant would be liable
for the full measure of damages for his death. So, why not reduce
damages in that situation as well. Couldn’t the case be made that
anytime the jury is not 100% sure that an injury was caused, then
damages should be reduced by the percentage by which they jury is
unsure? Why not do this for every element of the prima facie case? In
fact, why not throw out the preponderance of the evidence standard
altogether, and just have the jury assign a percentage by which they
are sure of each element, and then adjust damages accordingly?

Pure Economic Loss
In general, pure economic loss – that is, unaccompanied by any
physical damage to the plaintiff’s person or property – will not suffice
as an injury to create a prima facie case for negligence.

Example: A Tale of Two Factories – A couple of
billionaire balloon enthusiasts negligently allow their balloon
to become entangled in electric power lines, causing a
massive power outage to two factories. One factory makes
popsicles. The other factory makes lugnuts. Both factories
lose money because of the loss of productivity during the
blackout, but only the popsicle factory suffers physical
damage – namely the melting of its inventory of popsicles. In
this case, the popsicle factory can recover, but the lugnut
factory cannot. There are also workers, at both factories, who
lose out on wages while the factories are closed during the
blackout. The losses suffered by these workers are purely
economic, and so they cannot recover.
Despite the general rule, which is very robust, there are occasional
situations in which the courts have allowed recovery for pure
economic loss.
One somewhat ad hoc approach that has been used in a few
jurisdictions to allow negligence plaintiffs to recover for pure
economic loss is an idea of particular foreseeability. In People
Express Airlines, Inc. v. Consolidated Rail Corp., 495 A.2d 107 (N.J.

348

1985), the defendant railroad negligently caused a fire that forced the
evacuation of an airport terminal, resulting in a slew of cancelled
flights. The court allowed the airline to recover from the railroad for
the financial loss suffered on account of the cancelled flights because
the airline, as a plaintiff, was “particularly foreseeable.” The same
court rejected claims from everyone else – including travelers who
lost business deals. Even though such losses were foreseeable, they
were not, in the view of the court, particularly foreseeable.
Another situation in which courts have allowed negligence claims for
pure economic loss is against accountants. An accountancy’s client
can sue for a negligent audit, for example, even though the only
losses are economic. Moreover, third parties who relied on
information provided by accountants are sometimes able to recover
under a negligence theory. This type of suit can arise when a nonclient makes an investment decision based on the client’s negligently
audited books. The extent to which such non-clients can recover for
pure economic loss from differs by jurisdiction and circumstance.
Finally, attorneys can be sued for negligence – professional
malpractice, that is – when clients suffer purely economic losses. In
addition, third parties can also sometimes recover from an attorney,
despite the lack of a client relationship. A common situation for such
recovery is in the context of a negligently handled will. If it is clear
that a person was intended as a beneficiary, and would, but for the
attorney’s negligence, have received a bequest, the intended
beneficiary is often able to recover from the attorney. Without
allowing non-clients a cause of action in situations like this, attorneys
drafting wills could effectively have total immunity from malpractice,
since it is virtually always the case that the client will be deceased
when the malpractice is uncovered. Outside of the will context, it is
rare that non-clients can recover against attorneys. You may learn
more about attorney liability for professional malpractice in a
separate course called Professional Responsibility.

Mental Anguish and Emotional Distress
The general rule is that emotional or mental distress will not suffice
as an injury for purposes of pleading a prima facie case for

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negligence. There are myriad exceptions, however. Much of the
development of doctrine of allowing claims for pure emotional
distress involve parents seeking compensation for emotional distress
related to the death or grievous bodily injury of a child. Pregnancy
and childbirth are recurrent contexts as well. Much of the impetus for
the development of doctrine in this area likely has to do with the fact
that the death of a child – for reasons to be explored later – will
ordinarily give rise to little or nothing in damages under the common
law of torts.
At the outset, it is important to keep in mind that mental suffering is
generally recoverable if it is occasioned by a physical injury. The loss
of a limb, for instance, may cause compensable emotional harm. That
much is clear. Our question here is to what extent can a
mental/emotional harm itself provide the injury that is required for a
prima facie case for negligence.
Historically, the courts loosened the requirement of a physical injury
in cases of severe emotional distress to allow lawsuits where, despite
the lack of a physical injury, there was at least a physical impact
associated with the event that gave rise to the emotional distress.
Requiring an impact, however, led to results such as the one in
Micthell v. Rochester Railway Co., 45 N.E 354 (N.Y. 1896), where a
woman was denied recovery – for lack of an impact – where a team
of runaway horses almost trampled her, though never touched her,
and the stress of the event resulted in her having a miscarriage.
Later courts became willing to allow a claim for emotional distress
where accompanied by some physical manifestation of the stress.
And some courts broadened the impact exception to embrace
situations where there was some risk of impact to the plaintiff, or
where the plaintiff was within the “zone of danger” of an incident.
Either of these rules, of course, would have aided the plaintiff in
Mitchell.
Today, many cases support what can be thought of as an
independent tort of negligently inflicted emotional distress –
sometimes abbreviated “NIED.” Particularly influential in this regard
was the case of Dillon v. Legg, 68 Cal. 2d 728 (Cal. 1968), which

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allowed recovery to a person not within the zone of danger. In that
case, Margery M. Dillon witnessed her daughter Erin be fatally struck
by an automobile negligently driven by the defendant. Erin, who was
five, had started out ahead of her mother, legally crossing a road,
when hit. The Dillon court set out three factors to be considered:
“(1) Whether plaintiff was located near the
scene of the accident as contrasted with one
who was a distance away from it. (2) Whether
the shock resulted from a direct emotional
impact upon plaintiff from the sensory and
contemporaneous observance of the accident,
as contrasted with learning of the accident from
others after its occurrence. (3) Whether plaintiff
and the victim were closely related, as
contrasted with an absence of any relationship
or the presence of only a distant relationship.”

Under Dillon, these were only factors to be considered – that is, they
were guidelines for assessing whether the plaintiff’s emotional trauma
would be considered legally “foreseeable.” Many states followed
California’s lead, recognizing some form of NIED in the mold of
Dillon, often with various tweaks.
Meanwhile, two decades later, in the case of Thing v. La Chusa, 48
Cal.3d 644 (Cal. 1989), the California Supreme Court narrowed the
scope of the NIED action it had pioneered by recasting its own
Dillon guidelines into hard rules:
“[A] plaintiff may recover damages for
emotional distress caused by observing the
negligently inflicted injury of a third person if,
but only if, said plaintiff: (1) is closely related to
the injury victim; (2) is present at the scene of
the injury-producing event at the time it occurs
and is then aware that it is causing injury to the
victim; and (3) as a result suffers serious
emotional distress – a reaction beyond that
which would be anticipated in a disinterested
witness and which is not an abnormal response
to the circumstances.”

Here are the facts of Thing v. La Chusa, as recited by the court:

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“On December 8, 1980, John Thing, a minor,
was injured when struck by an automobile
operated by defendant James V. La Chusa. His
mother, plaintiff Maria Thing, was nearby, but
neither saw nor heard the accident. She became
aware of the injury to her son when told by a
daughter that John had been struck by a car. She
rushed to the scene where she saw her bloody
and unconscious child, who she believed was
dead, lying in the roadway. Maria sued
defendants, alleging that she suffered great
emotional disturbance, shock, and injury to her
nervous system as a result of these events, and
that the injury to John and emotional distress
she suffered were proximately caused by
defendants’ negligence.”

In Thing, the California Supreme Court denied recovery on the basis
of the test it articulated:
“The undisputed facts establish that plaintiff
was not present at the scene of the accident in
which her son was injured. She did not observe
defendant’s conduct and was not aware that her
son was being injured. She could not, therefore,
establish a right to recover for the emotional
distress she suffered when she subsequently
learned of the accident and observed its
consequences. The order granting summary
judgment was proper.”

Today, there is great variation across jurisdictions as to whether tort
law allows any claim at all for pure emotional harm or for NIED.
Even in jurisdictions were claims are allowed, the differences among
courts are considerable.

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10. Affirmative Defenses to
Negligence
“Offense sells tickets, but defense wins championships.”
– attributed to Paul William “Bear” Bryant

In General
There are three ways for a defendant to win a negligence case. First,
and easiest, the defendant can just stand by as the plaintiff fails to put
on evidence to prove each of the prima facie elements. If that
happens at trial, the defendant can successfully move for a directed
verdict – thereby winning the case without putting on a single witness
or, theoretically, even without asking a single question of any of the
plaintiff’s witnesses. Assuming the plaintiff puts on a prima facie
case, the second way for a defendant to win is to make out a rebuttal
defense. A rebuttal defense is established by offering evidence to
rebut the plaintiff’s evidence for one or more of the prima facie
elements established by the plaintiff. But the defendant need not
rebut a prima facie case: The third and final way for a defendant to
win is to prove an affirmative defense.
Even if a plaintiff makes out a prima facie case, and even if the
defendant has no rebuttal evidence whatsoever, the defendant can
still obtain victory by proving an affirmative defense. Sometimes an
affirmative defense will effect a complete victory for the defendant.
Other times, an affirmative defense will effect a partial victory,
shielding the defendant from some portion of the damages.
When it comes to affirmative defenses, the burden of proof is on the
defendant. That is why it is called an “affirmative” defense – proving
it up is the affirmative obligation of the defendant. In comparison,
the first two ways for defendants to win – pointing out the failure of
proof on the prima facie case or rebutting an element – can be
thought of as “negative” defenses. There, the defense is premised on
what the plaintiff lacks. With an affirmative defense, the defendant

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has to burden of putting all the needed evidence in front of the
factfinder.
The standard of proof for an affirmative defense is the same as for
the plaintiff’s prima facie case – preponderance of the evidence. And,
like a cause of action, an affirmative defense may be broken down
into elements. Where an affirmative defense is structured as a series
of elements, the defendant will have to prove each one of the
elements by a preponderance of the evidence.
Keep in mind that an affirmative defense trumps the plaintiff’s prima
facie case. Even if a plaintiff went far beyond its burden of proving
every element by a mere preponderance of the evidence – suppose,
for instance that a plaintiff proved every element to a 100% certainty
– it only takes an affirmative defense with each element proved by a
mere preponderance of the evidence to block the plaintiff’s recovery.
There are three main affirmative defenses that are particular for
negligence claims: contributory negligence, comparative negligence,
and assumption of the risk. They are the subject of this chapter.
The first two affirmative defenses – contributory negligence and
comparative negligence – work by pointing the finger back at the
plaintiff and blaming the plaintiff’s injury on the plaintiff’s own
negligence. Contributory negligence and comparative negligence are
alternatives to one another. Most jurisdictions have the defense of
comparative negligence. The few that do not have the contributory
negligence defense.
The defense of assumption of the risk is just what it sounds like: The
plaintiff agreed to shoulder the risk that something would go wrong,
so when it does, the plaintiff cannot come to the defendant for
compensation.

Plaintiff’s Negligence
If the plaintiff’s own negligence worked to bring about the harm the
plaintiff complains about, then the defendant can use the plaintiff’s
negligence as a defense. Depending on the jurisdiction, the defense
will either be of the contributory-negligence type or the comparative-

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negligence type. Within either type, there are a myriad of possible
differences between jurisdictions.
All of tort law is subject to differences from one jurisdiction to
another. But there is probably no more important and fundamental
set of differences in common-law doctrine than those having to do
with the affirmative defense premised on the plaintiff’s negligence. If
you were a personal-injury attorney or an insurance-defense attorney
moving to a new state, the first thing you would want to learn is how
the law regards the plaintiff’s negligence as a defense.
The first and most important distinction is whether the jurisdiction
recognizes the comparative negligence defense or the contributory
negligence defense. Contributory negligence is the older doctrine, and
it is more defendant friendly. Comparative negligence – also called
“comparative fault” – is the newer doctrine, and it is more plaintiff
friendly. Under contributory negligence, if the plaintiff was a little bit
negligent, then the plaintiff loses. Under comparative negligence, the
plaintiff’s negligence is not necessarily a bar to recovery, but it will at
least serve to reduce the total amount of the award.
Contributory Negligence
The doctrine of contributory negligence holds that if the defendant
can prove that the plaintiff’s own negligence contributed to the injury
that the plaintiff complains of, then the defendant is not liable. To be
more exact, proving a case for contributory negligence involves
proving that the plaintiff’s conduct fell below the standard of care a
person is expected adhere to for one’s own good, and that such
conduct was an actual and proximate cause of the injury that the
plaintiff is suing on.
To break the defense of contributory negligence into elements, we
can start with the elements of negligence. To review, those are: owing
a duty, breaching the duty, actual causation, proximate causation, and
the existence of an injury. For purposes of contributory negligence,
we can throw a couple of those elements out. It generally goes
without saying that a person owes a duty to one’s self, so there is no
need to have the existence of duty as an element. Similarly, there is
no point in discussing the existence of an injury, since the occasion

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for asserting the defense will never come up unless there is an injury.
So we can break contributory negligence down into three elements:
(1) breach of the duty of care, (2) actual causation, and (3) proximate
causation. In practice, issues of contributory negligence generally
revolve around the breach element.
Contributory negligence was once available as a defense everywhere.
Now it exists only in five American jurisdictions – Maryland, the
District of Columbia, Virginia, North Carolina, and Alabama.
Curiously, you’ll note, all of those jurisdictions are contiguous except
Alabama. And interestingly enough, the state of Tennessee – which
connects Alabama to Virginia and North Carolina – is the most
recent convert from contributory negligence to comparative fault.
Tennessee broke the contiguous swath when it switched in 1992.
The reason for the decline in contributory negligence is that it is
perceived as being too harsh on plaintiffs. With the defense of
contributory negligence, a plaintiff who is found to have been even
slightly negligent will be completely barred from any recovery, even
against a defendant who was colossally negligent. Imagine that it’s
late at night on a stretch of two-lane highway. The driver of a car
momentarily takes his eyes off the road while adjusting his car’s air
conditioning vents, and at that moment is hit head on by an
overloaded truck with no lights whose driver was simultaneously
under the heavy influence of alcohol, cocaine, and heroin, and – at
the moment of the collision – was attempting to learn juggling by
watching an instructional video on a laptop set on the dashboard and
practicing the moves with a set of steak knives. The collision causes
the driver of the car to be grievously injured and permanently
disabled, while the truck driver walks away without a scratch. What is
the result in a contributory negligence jurisdiction? No recovery for
the plaintiff.
Case: Coleman v. Soccer Association
The following case shows contributory negligence in action and
fleshes out the debate over its continued existence.

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Coleman v. Soccer Association of Columbia
Court of Appeals of Maryland
July 9, 2013
432 Md. 679. James COLEMAN v. SOCCER ASSOCIATION
OF COLUMBIA. No. 9, Sept. Term, 2012. ELDRIDGE, J.
(Retired, Specially Assigned); GREENE, J., wrote a concurrence
joined by BATTAGLIA, McDONALD and RAKER (Retired,
Specially Assigned), JJ.; HARRELL, J., dissented.
Judge JOHN C. ELDRIDGE:
Thirty years ago, in Harrison v. Montgomery County Bd. of Educ., 295
Md. 442, 444 (1983), this Court issued a writ of certiorari to
decide “whether the common law doctrine of contributory
negligence should be judicially abrogated in Maryland and the
doctrine of comparative negligence adopted in its place as the
rule governing trial of negligence actions in this State.” In a
comprehensive opinion by then Chief Judge Robert C. Murphy,
the Court in Harrison, declined to abandon the doctrine of
contributory negligence in favor of comparative negligence,
pointing out that such change “involves fundamental and basic
public policy considerations properly to be addressed by the
legislature.”
The petitioner in the case at bar presents the same issue that was
presented in Harrison, namely whether this Court should change
the common law and abrogate the defense of contributory
negligence in certain types of tort actions. After reviewing the
issue again, we shall arrive at the same conclusion that the Court
reached in Harrison.~
The petitioner and plaintiff below, James Kyle Coleman, was an
accomplished soccer player who had volunteered to assist in
coaching a team of young soccer players in a program of the
Soccer Association of Columbia, in Howard County, Maryland.
On August 19, 2008, Coleman, at the time 20 years old, was
assisting the coach during the practice of a team of young soccer
players on the field of the Lime Kiln Middle School. While the
Soccer Association of Columbia had fields of its own, it did not
have enough to accommodate all of the program’s young soccer

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players; the Association was required to use school fields for
practices. At some point during the practice, Coleman kicked a
soccer ball into a soccer goal. As he passed under the goal’s
metal top rail, or crossbar, to retrieve the ball, he jumped up and
grabbed the crossbar. The soccer goal was not anchored to the
ground, and, as he held on to the upper crossbar, Coleman fell
backwards, drawing the weight of the crossbar onto his face. He
suffered multiple severe facial fractures which required surgery
and the placing of three titanium plates in his face. Coleman
instituted the present action by filing a complaint, in the Circuit
Court for Howard County, alleging that he was injured by the
defendants’ negligence. In his first amended complaint,
Coleman named four defendants: the Soccer Association of
Columbia, the Columbia Soccer Club, the Howard County
Government, and the Howard County Board of Education. On
August 16, 2010, Coleman filed a notice of voluntary dismissal
as to the Howard County Government. Subsequently, on
October 5, 2011, the parties stipulated to dismissal with
prejudice of the Columbia Soccer Club. On October 24, 2011,
the Howard County Board of Education was also dismissed
with prejudice from the suit, leaving the Soccer Association of
Columbia as the sole remaining defendant during the trial. The
defendant and respondent, the Soccer Association of Columbia,
asserted the defense of contributory negligence.
At the ensuing jury trial, the soccer coach who had invited
Coleman to help coach the soccer players testified that he had
not inspected or anchored the goal which fell on Coleman. The
coach also testified that the goal was not owned or provided by
the Soccer Association, and he did not believe that it was his
responsibility to anchor the goal. During the trial, the parties
disputed whether the goal was located in an area under the
supervision and control of the Soccer Association and whether
the Soccer Association was required to inspect and anchor the
goal. The Soccer Association presented testimony tending to
show that, because the goal was not owned by the Soccer
Association, the Soccer Association owed no duty to Coleman.
The Soccer Association also presented testimony that the
condition of the goal was open and obvious to all persons. The

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Association maintained that the accident was caused solely by
Coleman’s negligence.
Testimony was provided by Coleman to the effect that players
commonly hang from soccer goals and that his actions should
have been anticipated and expected by the Soccer Association.
Coleman also provided testimony that anchoring goals is a
standard safety practice in youth soccer.
At the close of evidence, Coleman’s attorney proffered a jury
instruction on comparative negligence.


The proffered jury instruction read as follows:
“A. Comparative Negligence—Liability
“If you find that more than one party has
established his/her burden of proof as to
negligence, as defined by the court, you must
then compare the negligence of those parties.
The total amount of negligence is 100%. The
figure that you arrive at should reflect the total
percentage of negligence attributed to each
party with respect to the happening of the
accident. A comparison of negligence is made
only if the negligence of more than one party
proximately caused the accident.”

The judge declined to give Coleman’s proffered comparative
negligence instruction and, instead, instructed the jury on
contributory negligence.
The jury was given a verdict sheet posing several questions. The
first question was: “Do you find that the Soccer Association of
Columbia was negligent?” The jury answered “yes” to this
question. The jury also answered “yes” to the question: “Do you
find that the Soccer Association of Columbia’s negligence
caused the Plaintiff’s injuries?” Finally, the jury answered “yes”
to the question: “Do you find that the Plaintiff was negligent
and that his negligence contributed to his claimed injuries?”
In short, the jury concluded that the Soccer Association of
Columbia was negligent and that the Soccer Association’s
negligence caused Coleman’s injuries. The jury also found that

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Coleman was negligent, and that his negligence contributed to
his own injuries. Because of the contributory negligence finding,
Coleman was barred from any recovery. The trial court denied
Coleman’s motion for judgment notwithstanding the verdict and
subsequently entered judgment in favor of the Soccer
Association of Columbia.~
The General Assembly’s repeated failure to pass legislation
abrogating the defense of contributory negligence is very strong
evidence that the legislative policy in Maryland is to retain the
principle of contributory negligence.~ For this Court to change
the common law and abrogate the contributory negligence
defense in negligence actions, in the face of the General
Assembly’s repeated refusal to do so, would be totally
inconsistent with the Court’s long-standing jurisprudence.
JUDGMENT OF THE CIRCUIT COURT FOR HOWARD
COUNTY AFFIRMED. COSTS TO BE PAID BY THE
APPELLANT JAMES COLEMAN.
Judge GLENN T. HARRELL, JR., dissenting:
Paleontologists and geologists inform us that Earth’s Cretaceous
period (including in what is present day Maryland) ended
approximately 65 million years ago with an asteroid striking
Earth (the Cretaceous–Paleogene Extinction Event), wiping-out,
in a relatively short period of geologic time, most plant and
animal species, including dinosaurs. As to the last premise, they
are wrong. A dinosaur roams yet the landscape of Maryland (and
Virginia, Alabama, North Carolina and the District of
Columbia), feeding on the claims of persons injured by the
negligence of another, but who contributed proximately in some
way to the occasion of his or her injuries, however slight their
culpability. The name of that dinosaur is the doctrine of
contributory negligence. With the force of a modern asteroid
strike, this Court should render, in the present case, this
dinosaur extinct. It chooses not to do so. Accordingly, I dissent.
My dissent does not take the form of a tit-for-tat trading of
thrusts and parries with the Majority opinion. Rather, I write for
a future majority of this Court, which, I have no doubt, will

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relegate the fossilized doctrine of contributory negligence to a
judicial tar pit at some point.~
Under the doctrine of contributory negligence, a plaintiff who
fails to exercise ordinary care for his or her own safety, and thus
contributes proximately to his or her injury, “is barred from all
recovery, regardless of the quantum of a defendant’s primary
negligence.” Harrison v. Montgomery Cnty. Bd. of Ed., 295 Md. 442,
451 (1983). Contributory negligence is the “neglect of duty
imposed upon all men to observe ordinary care for their own
safety,” Potts v. Armour & Co., 183 Md. 483, 490 (1944), and
refers not to the breach of a duty owed to another, but rather to
the failure of an individual to exercise that degree of care
necessary to protect him or her self. An “all-or-nothing”
doctrine, contributory negligence operates in application as a
total bar to recovery by an injured plaintiff.
The doctrine is of judicial “Big Bang” origin, credited generally
to the 1809 English case of Butterfield v. Forrester (1809) 103 Eng.
Rep. 926 (K.B.). In Butterfield, the court considered whether a
plaintiff, injured while “violently” riding his horse on a roadway,
by a pole negligently placed in the roadway, could recover
damages. Denying recovery, Lord Ellenborough penned the first
recognized incantation of contributory negligence, declaring,
“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 to avoid it on the part
of the plaintiff.”.~
Whatever the initial justifications attributed to its birth,
contributory negligence has been a mainstay of Maryland law
since its adoption in Irwin v. Sprigg, 6 Gill 200 (1847). Since that
time, Maryland courts applied the doctrine of contributory
negligence to bar recovery in negligence actions by at-fault
plaintiffs. Exceptions evolved, however, to allow recovery in
specific instances. For example, the defense of contributory
negligence is not available against claimants under five years of
age, in strict liability actions, and in actions based on intentional
conduct. Additionally, the doctrine of last clear chance

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developed, to allow a plaintiff to recover, despite his or her
contributory negligence, if he or she establishes “something new
or sequential, which affords the defendant a fresh opportunity
(of which he fails to avail himself) to avert the consequences of
his original negligence.”
The all-or-nothing consequences of the application of
contributory negligence have long been criticized nationally by
scholars and commentators. See, e.g., Hilen v. Hays, 673 S.W.2d
713, 717 (Ky.1984) (“A list of the critics of contributory
negligence as a complete bar to a plaintiff’s recovery reads like a
tort hall of fame. The list includes, among others, Campbell,
Fleming, Green, Harper and James, Dreton, Leflar, Malone,
Pound and Prosser.”); Prosser, Comparative Negligence, supra,
at 469 (“Criticism of the denial of recovery was not slow in
coming, and it has been with us for more than a century.”); 2
Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of
Torts, § 218 at 763 (2d ed. 2011) (“The traditional contributory
negligence rule was extreme not merely in results but in
principle. No satisfactory reasoning has ever explained the
rule.”).~
Respondent and its Amici count as a strength of the doctrine of
contributory negligence its inflexibility in refusing to
compensate any, even marginally, at-fault plaintiff. They argue
that, in so doing, contributory negligence encourages personal
responsibility by foreclosing the possibility of recovery for
potential, negligent plaintiffs, and thus cannot possibly be
outmoded. To the contrary, that the doctrine of contributory
negligence grants one party a windfall at the expense of the
other is, as courts and commentators alike have noted, unfair
manifestly as a matter of policy. See, e.g., Kaatz v. State, 540 P.2d
1037, 1048 (Alaska 1975) (“The central reason for adopting a
comparative negligence system lies in the inherent injustice of
the contributory negligence rule.”); Hoffman v. Jones, 280 So.2d
431, 436 (Fla.1973) (“Whatever may have been the historical
justification for [the rule of contributory negligence], today it is
almost universally regarded as unjust and inequitable to vest an
entire accidental loss on one of the parties whose negligent
conduct combined with the negligence of the other party to

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produce the loss.”); Lande & MacAlister, supra, at 4 (“The ‘all or
nothing’ system [of contributory negligence], disconnected from
a party’s degree of fault, is unfair and counterintuitive.”);
Prosser, Comparative Negligence, supra, at 469 (characterizing
contributory negligence as “outrageous” and an “obvious
injustice” that “[n]o one has ever succeeded in justifying ..., and
no one ever will”). Moreover, if contributory negligence
encourages would-be plaintiffs to exercise caution with respect
to themselves, then so too does the doctrine of comparative
fault by reducing the plaintiff’s recoverable damages. Unlike
contributory negligence, however, comparative fault deters also
negligence on the part of the defendant by holding him or her
responsible for the damages that he or she inflicted on the
plaintiff. See Lande & MacAlister, supra, at 5–6 (noting that,
although contributory negligence systems “burden[ ] only
plaintiffs with the obligation to take precautions,” comparative
negligence provides a “mixture of responsibility” that is “the
best way to prevent most accidents”); Prosser, Comparative
Negligence, supra, at 468 (“[T]he assumption that the speeding
motorist is, or should be meditating on the possible failure of a
lawsuit for his possible injuries lacks all reality, and it is quite as
reasonable to say that the rule promotes accidents by
encouraging the negligent defendant.”). Thus, Respondent’s
contention that contributory negligence encourages personal
responsibility, and is therefore preferable to comparative
negligence, is unpersuasive.~
As noted above, the widespread acceptance of contributory
negligence as a complete defense is attributed principally to (1)
the desire to protect the nations’ newly-developing industry
from liability and plaintiff-minded juries,~ and (2) “the concept
prevalent at the time that a plaintiff’s irresponsibility in failing to
use due care for his own safety erased whatever fault could be
laid at defendant’s feet for contributing to the injury.” Scott v.
Rizzo, 96 N.M. 682 (1981). Neither of these justifications,
however, carry weight in present-day Maryland. In today’s
society, there has been no need demonstrated to protect any
“newly-developing” industry at the expense of injured litigants.
Industry generally in this nation is no longer fledgling or so

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prone to withering at the prospect of liability. See, e.g., Alvis v.
Ribar, 85 Ill.2d 1, 52 Ill.Dec. 23, (1981) (“There is no longer any
justification for providing the protective barrier of the
contributory negligence rule for industries of the nation at the
expense of deserving litigants.”); Frummer v. Hilton Hotels Int’l,
Inc., 60 Misc.2d 840, (N.Y.Sup.1969) (“Courts now do not feel
any need to act as a protector of our nation’s infant industries,
for their infancy has long since passed.... In an age where a
defendant may through various means, such as insurance, readily
protect himself from a ruinous judgment, the solicitude of
nineteenth century courts for defendants is certainly out of
place....”). Moreover, tilting the scales to favor industry is
inconsistent with modern conceptions of justice, which focus
instead on proportional responsibility and fundamental fairness.
See Hilen v. Hays, 673 S.W.2d 713, 718 (Ky.1984) (“It may well
be that the 19th century judicial mind perceived of the need for
courts to tilt the scales of justice in favor of defendants to keep
the liabilities of growing industry within some bounds. But
assuming such a rule was ever viable, certainly it no longer
comports to present day morality and concepts of fundamental
fairness.”~ Rather, the array of Amici lined up in support of the
continuation of contributory negligence is populated by the
entrenched and established business interests who seek to
maintain an economic advantage.~
Our statements in Harrison did not circumscribe, however, our
authority to alter judicially-created common law rules in the face
of repeated legislative inaction on the subject. Although we have
declined frequently to effect changes in decisional doctrine upon
observing repeated legislative inaction, see, e.g., Potomac Valley
Orthopaedic Assocs. v. Md. State Bd. of Physicians, 417 Md. 622, 639–
40 (2011) (“Our conclusion is confirmed by the fact that, in
2007, 2008, 2009, and 2010, the General Assembly ‘rejected
efforts to achieve legislatively that which we [are being] asked to
grant judicially.’”~); Moore v. State, 388 Md. 623, 641 (2005)
(“Legislative inaction is very significant where bills have
repeatedly been introduced in the General Assembly to
accomplish a particular result, and where the General Assembly
has persistently refused to enact such bills.”), we determined, on

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multiple occasions, that legislative inaction may not be a
sufficient premise from which to draw a positive legislative
intent in certain situations. See, e.g., City of Balt. Dev. Corp. v.
Carmel Realty Assocs., 395 Md. 299, 329 (2006) (cautioning against
drawing a positive inference from legislative inaction because
“the General Assembly may well have ... decided not to enact
the amendment for a myriad of other reasons”); Goldstein v. State,
339 Md. 563, 570 (1995) (“[T]he mere fact that the General
Assembly has declined to adopt a particular proposal does not
preclude this Court from incorporating the substance of that
proposal into the common law....”); Automobile Trade Assoc. of
Md., Inc. v. Ins. Comm’r, 292 Md. 15, 24 (1981) (“[T]he fact that a
bill on a specific subject fails of passage in the General
Assembly is a rather weak reed upon which to lean in
ascertaining legislative intent.”); Cicoria v. State, 89 Md.App. 403,
428 n. 9 (1991) (noting that “[t]rying to determine what the
legislature intended (or did not intend) by rejecting those bills is
no easy assignment” and declining to draw either a positive or
negative inference from the rejected bills).
Although the Harrison court opted to defer to the Legislature,
the opinion in that case gives no indication that such deference
was unlimited. No acknowledgment was advanced that we lack
the authority to alter a long-standing common law rule where
the Legislature declines to enact proposed legislation.~ Further,
we did not characterize the inaction of the General Assembly as
a conclusive, definitive declaration of public policy – to the
contrary, we specifically stated that legislative inaction is “not
conclusive” and merely “indicative of an intention to retain the
doctrine of contributory negligence.”~
Declining to perpetuate unmindful deference to the Legislature
on such a topic would not be without precedent. For example,
as noted above, this Court stated repeatedly its intention to
defer to legislative action on the topic of interspousal immunity
before acting. Decades later, after noting the Legislature's
continued stasis on the subject, we rescinded our deference and
modernized an outdated common law rule.~
C.J. Bell has authorized me to state he joins in this opinion.

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Questions to Ponder About Coleman v. Soccer Association
A. What should be made of the Maryland legislature not providing
for a system of comparative negligence by statute? Are you persuaded
that this is a good reason for the court not to act? Should drawing an
inference from legislative inaction depend on particulars – such as
how often bills were introduced, whether committee hearings were
ever held, or whether there was a floor vote?
B. If the Maryland courts adopted a comparative negligence rule, the
Maryland legislature could overrule it with a simple statute. Is this a
persuasive reason to disregard the legislature’s prior inaction in
deciding whether the Maryland courts should overrule themselves?
C. From the perspective of people favoring comparative negligence,
do you think this case was a good vehicle for trying overturn
Maryland law?
D. What qualities, in general, would make a case a good vehicle for
attempting to effect a change in the law?

Last Clear Chance Doctrine
Contributory negligence can be harsh. But the bare doctrine of
contributory negligence doctrine is not the whole story. Perhaps
because of its harshness, various subversions have evolved ameliorate
contributory negligence in favor of plaintiffs in certain circumstances.
The most important of these, mentioned in Coleman, is the doctrine
of last clear chance.
The idea of last clear chance is that if, despite the plaintiff’s
negligence, the defendant has a last clear chance to avoid the injury,
then the defendant must seize that chance to prevent the harm. If the
defendant doesn’t, the defendant will be liable, the plaintiff’s
negligence notwithstanding.
Last clear chance applies when there is a particular temporal sequence
to the plaintiff’s and defendant’s negligence: First, the plaintiff does
something negligent, creating some perilous situation. Next, the
defendant has a chance to avoid injury to the plaintiff by being
careful. Then, the defendant omits to take the precaution, and injury

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results. This chronological order is essential – without it, last clear
chance doctrine will not apply.
A good example of last clear chance is the case credited with
introducing it: Davies v. Mann, 152 Eng. Rep. 588 (Court of
Exchequer 1842). In Davies, a donkey was left in a highway fettered
by its fore feet. This means of tying up the animal – called “an illegal
act” in the opinion – prevented the animal from being able to get out
of the way of traffic. The defendant, driving a horse-drawn wagon
along the highway at a high rate of speed, ran over and killed the
donkey. The court held:
“[A]lthough the ass may have been 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.”

Keep in mind that last clear chance doctrine is relevant only in a
jurisdiction following contributory negligence. In a comparative fault
jurisdiction, the more blameworthy kind of negligence involved when
a tortfeasor disregards an opportunity to avoid harm is swept up into
the general comparative fault rubric of apportioning blame.
Other Subversions of Contributory Negligence
In addition to last clear chance doctrine, there are other subversions
to contributory negligence that are favorable to plaintiffs. Some of
these, recognized in Maryland, are discussed in Judge Harrell’s dissent
in Coleman. Common subversion are that contributory negligence is
not available against very young plaintiffs (in Maryland, under five
years of age), in cases of willful, wanton or reckless negligence, or in
cases of intentional conduct. Also, while the reasonable-person
standard of care is not generally adjusted downward for persons with
mental illness of cognitive limitations when those persons are
defendants, the standard may be lowered in the context of the
contributory negligence defense to prevent the defense from barring
recovery. Along the same lines, negligence actions based on

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negligence per se doctrine may be impervious to a defense of
contributory negligence if the statute upon which the suit is based is
one specifically designed to protect persons who are unable to
protect themselves – such as children, intoxicated persons, or
persons with mental illness or cognitive disabilities.
Comparative Negligence
At the time of this writing, 46 states have overturned the commonlaw doctrine of contributory negligence in favor of some form of
comparative negligence. About a dozen have done so as the result of
a court decision, with the remainder having introduced comparative
negligence by way of a statutory reform.
Comparative negligence – also commonly called “comparative fault”
because it has applications in tort law beyond negligence claims – is a
partial defense. It allows a defendant to escape some portion of the
damages under certain circumstances on account of the plaintiff’s
negligence. Generally the jury is required to determine the relative
fault between the parties in the form of percentages. The reduction in
damages is then done by multiplying the total damages by the
relevant percentage. So if a jury finds that the plaintiff is 1% at fault,
that the defendant is 99% at fault, and that the plaintiff suffered
$100,000 in damages, then the plaintiff’s recovery will be reduced by
$1,000, meaning that the defendant will be liable for $99,000.
That is a simple example, but comparative negligence gets much
more complicated. The complications arise from the many variables
that allow the doctrine to be very different from one jurisdiction to
the next. As a result, there are myriad versions of comparative
negligence.
The first and most important variable is whether there is a threshold
quantum of the plaintiff’s negligence beyond which the defendant has
a complete, rather than partial, defense. The version called pure
comparative negligence has no threshold. This approach is
followed in 12 states. Whatever percentage the plaintiff is negligent,
that is the percentage by which the plaintiff’s recovery is reduced. For
instance, if the plaintiff is determined to be 99% negligent, then the
recovery is reduced by 99%, and the plaintiff can only recover 1% of

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the compensatory damages from the defendant. In such a case, the
plaintiff is, in the judgment of the factfinder, almost entirely to blame
for her or his own injury, yet a small amount of recovery is still
possible.
The perception among some courts and lawmakers that it would be
unfair to allow recovery in such a situation – where the plaintiff is
mostly to blame – has led to a form of the doctrine known as
modified comparative negligence (also known as “partial
comparative negligence.”) In this form, if the plaintiff’s negligence
meets or exceeds some threshold, then the plaintiff is entirely barred
from any recovery. In essence, there is a reversion to contributory
negligence. How this threshold works differs greatly among
jurisdictions.
In some jurisdictions the plaintiff is allowed recovery – subject to
reduction – so long as the plaintiff’s fault is not more than the
defendant’s fault. Other jurisdictions say that the plaintiff is allowed
recovery – subject to reduction – so long as the plaintiff’s fault is less
than the defendant’s fault. Notice that either way, the threshold is
50%. The difference is what happens in the event of a tie, where the
jury determines that both the plaintiff and the defendant are each
equally at fault, assigning 50% of the responsibility to each.
The more popular version of modified comparative negligence is the
more plaintiff-friendly one – the one in which the plaintiff can still
recover if fault is apportioned 50/50. By one count, 22 states use this
version. The more defendant-friendly rule – where equal fault means
the plaintiff is denied all recovery – is the choice of 11 states.
So we have two main versions of modified comparative negligence,
distinguished by what happens in the event that the plaintiff and the
defendant are equally at fault. What are these alternative versions
called? Putting labels on the rules is a potential source of extreme
confusion. Some sources use the label “50% rule” to refer to the rule
where defendant wins a complete victory in the event of tie.
Indubitably it makes sense to call this the “50% rule,” since the
plaintiff is barred from recovering if adjudged 50% at fault. But other
sources use the label “50% rule” to denote the rule that allows a

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plaintiff recovery in the event of a tie. This too makes perfect sense,
since under the rule the plaintiff can be up to 50% at fault without
being barred.
Unfortunately, it is very hard to know what someone is talking about
when they use the phrase “50% rule” (or, for that matter, “49% rule,”
or “51% rule”). You might distinguish them by calling one the “50%
bar rule” and the other the “50% allowed rule.” The safest way to
distinguish the two, however, may be to call them the plaintiff-winsthe-tie rule and the defendant-wins-the-tie rule. It’s inelegant, but
unambiguous.
None of this would matter much if ties were rare. But they are not. If
you ask a jury to assign proportional blame between two negligent
parties, the easiest and most obvious answer will often be to say that
they are both equally at fault. So what happens in the event of a tie
may amount to a huge difference in the overall effect of tort law in a
given jurisdiction.
Even once the labels are straightened out, there is still a problem
grouping states together in this way. One of the 22 states counted in
the plaintiff-wins-in-tie rule was Michigan. But in Michigan, under
Michigan Compiled Laws § 600.2959, a plaintiff who is more to
blame than the defendant is barred just from noneconomic damages.
So a more-than-half negligent plaintiff in Michigan could recover a
percentage of medical bills and lost wages while being barred from all
pain-and-suffering damages.
But wait. There are yet more complications. Up to this point, we have
spoken only of situations in which there is one defendant. What if
there are multiple defendants? Is the negligence threshold applied by
comparing the plaintiff to each individual defendant, or to all
defendants considered collectively? You will not be surprised to find
out that jurisdictions differ. Most states consider defendants
collectively – employing the threshold by comparing the plaintiff’s
percentage of the blame to the percentage of all the defendant’s
considered collectively. A few states apply the threshold on a
defendant-by-defendant basis.

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Statutes: Comparative Negligence
The following statutes show some of the variety of implementations
of the comparative negligence defense.

Kentucky Revised Statues
Title XXXVI, Chapter 411
411.182 Allocation of fault in tort actions – Award of damages –
Effect of release.
(1) In all tort actions, including products liability actions,
involving fault of more than one (1) party to the action,
including third-party defendants and persons who have been
released under subsection (4) of this section, the court, unless
otherwise agreed by all parties, shall instruct the jury to answer
interrogatories or, if there is no jury, shall make findings
indicating:
(a) The amount of damages each claimant would be entitled to
recover if contributory fault is disregarded; and
(b) The percentage of the total fault of all the parties to each
claim that is allocated to each claimant, defendant, third-party
defendant, and person who has been released from liability
under subsection (4) of this section.
(2) In determining the percentages of fault, the trier of fact shall
consider both the nature of the conduct of each party at fault
and the extent of the causal relation between the conduct and
the damages claimed.
(3) The court shall determine the award of damages to each
claimant in accordance with the findings, subject to any
reduction under subsection (4) of this section, and shall
determine and state in the judgment each party’s equitable share
of the obligation to each claimant in accordance with the
respective percentages of fault.
(4) A release, covenant not to sue, or similar agreement entered
into by a claimant and a person liable, shall discharge that
person from all liability for contribution, but it shall not be
considered to discharge any other persons liable upon the same

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claim unless it so provides. However, the claim of the releasing
person against other persons shall be reduced by the amount of
the released persons’ equitable share of the obligation,
determined in accordance with the provisions of this section.

Minnesota Statutes
Chapter 604, Section 01
604.01 COMPARATIVE FAULT; EFFECT.
Subdivision 1. Scope of application. Contributory fault does not
bar recovery in an action by any person or the person's legal
representative to recover damages for fault resulting in death, in
injury to person or property, or in economic loss, if the
contributory fault was not greater than the fault of the person
against whom recovery is sought, but any damages allowed must
be diminished in proportion to the amount of fault attributable
to the person recovering. The court may, and when requested by
any party shall, direct the jury to find separate special verdicts
determining the amount of damages and the percentage of fault
attributable to each party and the court shall then reduce the
amount of damages in proportion to the amount of fault
attributable to the person recovering.
Subd. 1a. Fault. "Fault" includes acts or omissions 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. The term also includes breach of warranty,
unreasonable assumption of risk not constituting an express
consent or primary assumption of risk, misuse of a product and
unreasonable failure to avoid an injury or to mitigate damages,
and the defense of complicity under section 340A.801. Legal
requirements of causal relation apply both to fault as the basis
for liability and to contributory fault. The doctrine of last clear
chance is abolished.
Evidence of unreasonable failure to avoid aggravating an injury
or to mitigate damages may be considered only in determining
the damages to which the claimant is entitled. It may not be
considered in determining the cause of an accident.

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Subd. 2. Personal injury or death; settlement or payment.
Settlement with or any payment made to an injured person or to
others on behalf of such injured person with the permission of
such injured person or to anyone entitled to recover damages on
account of injury or death of such person shall not constitute an
admission of liability by the person making the payment or on
whose behalf payment was made.
Subd. 3. Property damage or economic loss; settlement or
payment. Settlement with or any payment made to a person or
on the person's behalf to others for damage to or destruction of
property or for economic loss does not constitute an admission
of liability by the person making the payment or on whose
behalf the payment was made.
Subd. 4. Settlement or payment; admissibility of evidence.
Except in an action in which settlement and release has been
pleaded as a defense, any settlement or payment referred to in
subdivisions 2 and 3 shall be inadmissible in evidence on the
trial of any legal action.
Subd. 5. Credit for settlements and payments; refund. All
settlements and payments made under subdivisions 2 and 3 shall
be credited against any final settlement or judgment; provided
however that in the event that judgment is entered against the
person seeking recovery or if a verdict is rendered for an
amount less than the total of any such advance payments in
favor of the recipient thereof, such person shall not be required
to refund any portion of such advance payments voluntarily
made. Upon motion to the court in the absence of a jury and
upon proper proof thereof, prior to entry of judgment on a
verdict, the court shall first apply the provisions of subdivision 1
and then shall reduce the amount of the damages so determined
by the amount of the payments previously made to or on behalf
of the person entitled to such damages.

Maine Revised Statutes
Title 14, §1
§156. Comparative negligence

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When any person suffers death or damage as a result partly of
that person's own fault and partly of the fault of any other
person or persons, a claim in respect of that death or damage
may not be defeated by reason of the fault of the person
suffering the damage, but the damages recoverable in respect
thereof must be reduced to such extent as the jury thinks just
and equitable having regard to the claimant's share in the
responsibility for the damage.
When damages are recoverable by any person by virtue of this
section, subject to such reduction as is mentioned, the court
shall instruct the jury to find and record the total damages that
would have been recoverable if the claimant had not been at
fault, and further instruct the jury to reduce the total damages by
dollars and cents, and not by percentage, to the extent
considered just and equitable, having regard to the claimant's
share in the responsibility for the damages, and instruct the jury
to return both amounts with the knowledge that the lesser figure
is the final verdict in the case.
Fault means negligence, breach of statutory duty or other act or
omission that gives rise to a liability in tort or would, apart from
this section, give rise to the defense of contributory negligence.
If such claimant is found by the jury to be equally at fault, the
claimant may not recover.
In a case involving multiparty defendants, each defendant is
jointly and severally liable to the plaintiff for the full amount of
the plaintiff's damages. However, any defendant has the right
through the use of special interrogatories to request of the jury
the percentage of fault contributed by each defendant. If a
defendant is released by the plaintiff under an agreement that
precludes the plaintiff from collecting against remaining parties
that portion of any damages attributable to the released
defendant's share of responsibility, then the following rules
apply.
1. General rule. The released defendant is entitled to be
dismissed with prejudice from the case. The dismissal bars all

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related claims for contribution assertable by remaining parties
against the released defendant.
2. Post-dismissal procedures. The trial court must preserve for
the remaining parties a fair opportunity to adjudicate the liability
of the released and dismissed defendant. Remaining parties may
conduct discovery against a released and dismissed defendant
and invoke evidentiary rules at trial as if the released and
dismissed defendant were still a party.
3. Binding effect. To apportion responsibility in the pending
action for claims that were included in the settlement and
presented at trial, a finding on the issue of the released and
dismissed defendant's liability binds all parties to the suit, but
such a finding has no binding effect in other actions relating to
other damage claims.

Some Problems on Applying Comparative Negligence
Statutes
For the following problems, apply what you have learned from the
foregoing statutes as well as from the case of Coleman v. Soccer
Association of Columbia.
A. The law firm of Lorisbarn & Lindern has built a successful
boutique litigation practice representing plaintiffs on a contingency
fee basis in personal-injury negligence actions arising from accidents
involving personal all-terrain vehicles or ATVs. In the kinds of cases
L&L takes on, the plaintiff’s negligence is often an issue and there are
often multiple defendants. The firm is now considering opening up
an office in a new state. The firm has determined that Kentucky,
Maine, Maryland, and Minnesota all represent approximately equal
opportunities in terms of the saturation of the market for
contingency-fee plaintiff’s representation and financially lucrative
cases. The firm has decided that a key factor in its determination of
where to open a new practice will be the state’s doctrine regarding
the impact of the plaintiff’s negligence on the recovery of damages.
All else being equal, how would you rank the states in order of
desirability for L&L? To support your conclusion, how would you

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describe the differences among those states in terms of their
treatment of a plaintiff’s negligence?
B. Suppose a jury privately determines, in the course of deliberations,
that the total amount of damages suffered by a plaintiff is $100,000,
and that the apportionment of fault among the parties is as follows:
Plaintiff: 50%; Defendant: 50%. The jury then returns a verdict in
accordance with that determination – including filling out any special
interrogatories or verdict forms as instructed. How much will the
plaintiff receive from the defendant in Kentucky? In Maine? In
Maryland? In Minnesota?
C. Suppose a jury privately determines, in the course of deliberations,
that the total amount of damages suffered by a plaintiff is $100,000,
and that the apportionment of fault among the parties is as follows:
Plaintiff: 40%; Defendant X: 20%; Defendant Y: 20%; Defendant Z:
20%. The jury then returns a verdict in accordance with that
determination – including filling out any special interrogatories or
verdict forms as instructed. How much will the plaintiff receive from
Defendant X in Kentucky? In Maine? In Maryland? In Minnesota?

Assumption of the Risk
The affirmative defense of assumption of the risk provides that
defendants can avoid liability where plaintiffs have voluntarily taken
the chance that they might get hurt. One way to think about
assumption of the risk is in relation to the prima facie elements of a
negligence claim. Where plaintiffs assume the risk, they relieve
defendants of their duty of due care.
Implied vs. Express Assumption of the Risk
The label “assumption of the risk” is applied by courts to many
different situations, and it may differentially engage different
requirements and limitations. There are two broad categories,
however, that form an important division: implied and express.
Implied assumption of the risk comes about when plaintiffs, by their
conduct or actions, show that they have assumed the risk. Express
assumption of the risk results from an explicit agreement in words –
written or oral – assuming the risk.

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The Elements of Assumption of the Risk
Assumption of the risk – whether of the implied or express type –
can be broken down into two elements: (1) The plaintiff must know
and appreciate the risk, including its nature and severity. (2) The
plaintiff must take on the risk in an entirely voluntary way.
These requirements are quite strict.
Knowledge – To show knowledge it is generally not enough for the
defendant to show that the plaintiff should have known about the
risk. There generally must be proof that the plaintiff actually knows
about the risk. And it is not just knowledge that is required, but real
understanding and appreciation. In other words, plaintiffs have to
really know what they are getting into. To put it in more formal
terms, the standard is a subjective one – looking at what the person
actually understood, rather than an objective one, which would look
at what the person should have understood given the circumstances.
Contrast the doctrine of assumption of the risk with the objective
reasonable person standard in the prima face case for negligence. The
reasonable person standard, being objective, will not bend to a
defendant’s lack of understanding or awareness. So, it is readily
possible for an inattentive or hapless person to blunder into
negligence liability. In fact, the more inattentive you are, the most
likely negligence liability becomes. By contrast, the more witless you
are, the harder it is to assume the risk. A plaintiff, who, because of a
lack of experience or intelligence is incapable of understanding the
risk, cannot assume it.
There are limits to the subjectivity of assumption of the risk. In the
sports context, there is less tolerance for claims of ignorance.
Plaintiffs hit by foul balls as spectators at baseball games tend to be
held to a more objective standard. The same goes for participants in
sports activities.
Voluntariness – The standard for voluntariness is quite strict as well.
There must be a genuine choice if a plaintiff is to be held to having
assumed the risk. If it is the case that the plaintiff was compelled by
circumstance and had no reasonable choice other than to confront

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the risk, then it does not count as voluntary for purposes of
assumption-of-the-risk doctrine. Similarly, if a plaintiff’s only choice
to avoid the risk is to forego a legal right – such as enjoying one’s
own property – then the there is no voluntariness. In the celebrated
case of Marshall v. Ranne, 511 S.W.2d 255 (Tex. 1974), a plaintiff who
was attacked and bitten by his neighbor’s boar was held not to have
assumed the risk by walking out of his own house.
Relationship with Contributory and Comparative
Negligence
There is considerable practical and conceptual overlap between the
defense of assumption of the risk and the defenses of contributory or
comparative negligence. But assumption of the risk is conceptually
distinguishable in that a plaintiff that assumes the risk might be acting
reasonably. By definition, in a contributory/comparative negligence
situation, the plaintiff is not acting reasonably. On the other hand,
plaintiffs might be quite reasonable in assuming the risk if they have
determined that rewards outweigh the downside of the potential for
injury.
Since the move from contributory negligence to the flexible system
of comparative fault, many courts have held that the assumption of
the risk doctrine is absorbed to some extent into comparative fault
doctrine. The extent of the continuing viability of assumption of the
risk depends in large part about whether we are talking about implied
or express assumption of the risk. The trend has been to abrogate the
defense of implied assumption the risk. On the other hand, express
assumption of the risk generally remains viable as a defense.
Case: Murphy v. Steeplechase Amusement Co.
The following case is an example of implied assumption of the risk.

Murphy v. Steeplechase Amusement Co.
Court of Appeals of New York
April 16, 1929
250 N.Y. 479. James Murphy, an Infant, by John Murphy, His
Guardian ad Litem, Respondent, v. Steeplechase Amusement
Co., Inc., Appellant. Submitted March 25, 1929. Decided April

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16, 1929. Court below: Appellate Division of the Supreme Court
in the First Judicial Department affirmed judgment for plaintiff
entered upon a verdict. Murphy v. Steeplechase Amusement
Co., Inc., 224 App. Div. 832 (1928). This court: Counsel:
Gardiner Conroy and Reginald S. Hardy for appellantdefendant. Charles Kennedy for respondent-plaintiff. Judges:
Cardozo, Ch. J. Pound, Crane, Lehman, Kellogg and Hubbs, JJ.,
concur; O’Brien, J., dissents.
Chief Judge BENJAMIN N. CARDOZO:
The defendant, Steeplechase Amusement Company, maintains
an amusement park at Coney Island, New York.
One of the supposed 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
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.
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. Something 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 been no point
to the whole thing, no adventure about it, if the risk had not
been 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 experience 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 viewed them, to sit down with
decorum or even to stand and keep their footing; others jumped

379

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.
We see no adequate 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 head is in no position to discriminate with nicety
between the successive stages of the shock, between the jerk
which is a cause and the jerk, accompanying the fall, as an
instantaneous effect. There is evidence 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 mechanism. 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. The antics of the clown are not the paces of the

380

cloistered cleric. The rough and boisterous joke, the horseplay
of the crowd, evokes its own guffaws, but they are not the
pleasures of tranquillity. 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, or so serious as to justify the
belief that precautions of some kind must have been taken to
avert them. 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 never been such an accident before. A nurse
employed at an emergency hospital maintained in connection
with the park contradicts him to some extent. 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.
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 equipment, and one not obvious or
known. The padding should have been kept in repair to break

381

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 theory
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.

Questions to Ponder About Murphy v. Steeplechase
A. Amusement parks in the in the Roaring 20s seem to be more
dangerous places than the amusement parks of today. Do you think
an amusement park today would have a ride like the Flopper?
Assuming it did, and the facts of Murphy came to pass, do you think
the case would come out the same way these days?
B. Judge Cardozo seems to say that risk was necessary for the
Flopper to be fun: “There would have been no point to the whole
thing, no adventure about it, if the risk had not been there.” Do you
agree?
C. Generally speaking, assumption of the risk requires not only that
the plaintiff knows about the risk, but that the plaintiff understands
the nature of the risk. Clearly James Murphy appreciated the risk that
he might fall. But do you think James Murphy appreciated the fact
that he might suffer a broken kneecap from the Flopper?
Case: Hulsey v. Elsinore Parachute Center
The following case explores express assumption of the risk and
considers under what circumstances a release will be enforceable.

Hulsey v. Elsinore Parachute Center
Court of Appeal of California, Fourth Appellate District,
Division Two
May 16, 1985
ANTHONY HULSEY, Plaintiff and Appellant, v. ELSINORE
PARACHUTE CENTER, Defendant and Respondent. No.
E000643. Court ofdozo Appeal of California, Fourth Appellate

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District, Division Two. Opinion by McDaniel, J., with Kaufman,
Acting P.J., and Rickles, J., concurring.
Judge FRANKLIN DOUGLAS McDANIEL:
In this appeal, we are called upon to review the propriety of a
summary judgment entered for defendant in a sports risk case.
The action in the trial court was to recover for personal injuries
suffered by plaintiff at the time of his first parachute jump, one
attempted under the auspices of defendant. At the hearing of
the motion for summary judgment, no disputed issues of fact
were raised in connection~ with the count based on negligence~.
As a consequence, the trial court was concerned generally with~
whether the agreement and release of liability signed by plaintiff
at the time of the instructional preparation for his first parachute
jump is enforceable against him.~ In our view, the trial court
correctly ruled that the release is enforceable.~
After the case was at issue and defendant had taken plaintiff’s
deposition, defendant noticed a motion for summary judgment.
The supporting papers included the declaration of counsel for
defendant, Peter James McBreen, the principal purpose of
which was to authenticate certain documentary evidence he
wished to place before the court: (1) Exhibit “A,” a copy of
plaintiff’s deposition; (2) exhibit “B,” a copy of the “Registration
Card” signed by plaintiff several hours before he took off on his
misadventure; and (3) exhibit “C,” a copy of the “Agreement of
Release of Liability,” also signed by plaintiff at the same time he
filled out the “Registration Card” on the reverse side.
As established by plaintiff’s deposition, he went to defendant’s
place of business, the Elsinore Parachute Center (EPC), in the
company of three friends, two of whom had had previous
experience in sport parachuting. Upon arriving at EPC, plaintiff
enrolled in the “First Jump Course” offered by defendant.
Although plaintiff stated he had no recollection of filling out or
signing the “Parachute Center Adult Registration Form,” he did
admit that the written inscriptions, the initials and the signature
on the form were his.

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Continuing, plaintiff also disclaimed any recollection of reading
or signing the “Agreement & Release of Liability,” but he did
admit once again that the signature and the initials on the
agreement were his. Plaintiff admitted that he voluntarily
enrolled in the first-jump course and was not coerced in any way
during the registration process.~
During the classroom training, the instructor advised the class
that students occasionally break their legs while jumping. In
addition, canopy control was discussed and plaintiff received
instruction on the proper procedure to be followed in
maneuvering the parachute for landing. Plaintiff admitted that
he understood the information provided and felt he was one of
the better students in the class.~
Plaintiff’s actual jump was postponed several hours because of
wind. At approximately 6:30 p.m., plaintiff boarded the aircraft
for his first jump. Plaintiff recalled that the wind was “still” or
“very calm” when he boarded the aircraft.
Plaintiff’s exit from the aircraft was normal. Plaintiff testified
that he attempted to steer toward the target area but was unable
to reach it. Plaintiff attempted to land in a vacant lot but
collided with electric power lines as he neared the ground. As he
drifted into the wires, plaintiff saw a bright flash. Plaintiff’s next
recollection was of regaining consciousness on the ground.
Despite the extreme risk to which he was thereby exposed,
plaintiff sustained only a broken wrist.
As for other items before the court, exhibit "B" and exhibit "C,"
attached to Attorney McBreen's declaration,~ are included
herein~. These items are copies of the registration card and the
release reproduced here~.

384

385

386

~In

pursuing his appeal, plaintiff makes four substantive
contentions. They are that: (1) on the undisputed factual
scenario there was no clear and comprehensive notice to
plaintiff of what the legal consequences of the release would be;
(2) such releases are against public policy; (3) the release is
unenforceable because unconscionable in that it did not
comport with plaintiff’s reasonable expectations~.
[B]efore proceeding to a discussion of the~ issues of substance
noted, we must also note in passing that we are not at all
persuaded that plaintiff should be relieved of the legal
consequences of the things he signed because he did not realize
what he was signing or that somehow he was distracted or
misled from a fair realization of what was involved. It is well
established, in the absence of fraud, overreaching or excusable
neglect, that one who signs an instrument may not avoid the
impact of its terms on the ground that he failed to read the
instrument before signing it. On the record here, there is no
indication whatsoever of fraud or other behavior by defendant
which would otherwise have made the [usual] rule inapplicable.
Another aspect of this preliminary inquiry into the
circumstances surrounding plaintiff’s filling out the registration
card and signing the release involves the size of the type used in
printing the release. In the case of Conservatorship of Link (1984)
158 Cal.App.3d 138, the court held the purported exculpatory
documents unenforceable for several reasons, including the fact
that they were printed in five and one half point type and thus
could not easily be read by persons of ordinary vision. (Id., at pp.
141-142.) Actually, as observed in Link, “The five and one-half
point print is so small that one would conclude defendants
never intended it to be read … the lengthy fine print seems
calculated to conceal and not to warn the unwary.”
The type size contained in Link is not present here. As appears
from the actual size reproduction in the appendix, the release is
in 10-point type, both caps and lower case letters. This size
comports with a number of minimums prescribed by statute.

Examples: Civil Code sections 1630 [eight to ten-point:
parking lots]; 1677 [eight-point bold red or ten-point bold:

387

liquidated damages provision in realty purchase contract]; 1803.1
and 1803.2 [eight to fourteen-point: retail installment sales];
1812.85 [ten-point bold: health studio services]; 1812.205 and
1812.209 [ten to sixteen-point bold: seller assisted marketing
plan]; 1812.302 and 1812.303 [ten-point bold: membership
camping]; 1812.402 [ten-point: disability insurance]; 1861.8 [tenpoint bold: innkeepers]; 1916.5 and 1916.7 [ten-point bold: loan
of money]; 2924c [twelve to fourteen-point bold: mortgage
default notice]; 2982.5 and 2983.2 [eight to ten-point bold:
automobile sales finance]; 2985.8, 2986.2 and 2986.4 [six to tenpoint bold: vehicle leasing act]; 3052.5 [ten-point bold: service
dealer lien].” (Conservatorship of Link, supra, 158 Cal.App.3d
138, 141.)
As appears from a copy of the agreement reproduced in actual
size and attached as an appendix, the second paragraph recites
in bold-faced type: “I Am Aware That Parachute Instruction
And Jumping Are Hazardous Activities, And I Am Voluntarily
Participating In These Activities With Knowledge Of The
Danger Involved And Hereby Agree To Accept Any And All
Risks Of Injury Or Death. Please Initial.” Plaintiff affixed his
initials.
The third paragraph recites that the subscriber will not sue EPC
or its employees “for injury or damage resulting from the
negligence or other acts, howsoever caused, by any employee,
agent or contractor of [EPC] or its affiliates, as a result of my
participation in parachuting activities.” That paragraph goes on
to recite that the subscriber will “release and discharge” EPC
and its employees “from all actions, claims or demands … for
injury or damage resulting from [the subscriber’s] participation
in parachuting activities.”
The fourth paragraph, also in bold-faced type, recites that: “I
Have Carefully Read This Agreement And Fully Understand Its
Contents. I Am Aware That This Is A Release Of Liability And
A Contract Between Myself And Elsinore Parachute Center
And/Or Its Affiliated Organizations And Sign It Of My Own
Free Will.” Plaintiff’s signature was thereto subscribed.
I

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Plaintiff’s first contention involves an inquiry into whether
plaintiff could reasonably have been expected to understand its
legal consequences for him. In substance, plaintiff argues that
the agreement was not sufficiently explicit or unambiguous to be
enforceable against him~.
Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147
Cal.App.3d 309 refused to enforce an exculpatory agreement
between a race car driver and race sponsor. The operative
language used in the agreement there in issue provided that the
driver would “save harmless and keep indemnified” (Id., at p.
312) the race sponsor. The court reasoned that such language
could not be reasonably expected to alert a layperson to the
significance of the agreement and, therefore, that it was not
sufficiently clear and explicit.
In contrast to the agreement in Ferrell, the one here was phrased
in language clear to anyone. We have already quoted the
pertinent provision, and it would be hard to imagine language
more clearly designed to put a layperson on notice of the
significance and legal effect of subscribing it. The flaws which
the Ferrell court found in the agreement it had before it are not
present here. Instead of disguising the operative language in
legalese, the defendant prepared its agreement in simple, clear
and unambiguous language understandable to any layperson. In
sum, we hold that the language of the agreement here falls well
within the Ferrell rule, i.e., that it was effectively drafted so as
“clearly [to] notify the prospective releasor or indemnitor of the
effect of signing the agreement.” (Ferrell v. Southern Nevada OffRoad Enthusiasts, Ltd., supra, 147 Cal.App.3d 309, 318.)
II
Turning to plaintiff’s second contention, namely that releases of
the type here used are against public policy, we note first that
such agreements as this are arguably contemplated by section
1668 of the Civil Code. That section provides: “All contracts
which have for their object, directly or indirectly, to exempt
anyone from the responsibility for his own fraud, or willful
injury to the person or property of another, or violation of law,
whether willful or negligent, are against the policy of the law.”

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Whatever it proscribes, this section does not invalidate contracts
which seek to except one from liability for simple negligence or
strict liability.
Civil Code section 1668 refers to limitations which are described
as against the policy of the law. Such policy is the aggregate of
judicial pronouncements on a given issue, and in this context
deal with the concept characterized as “the public interest.” This
concept calls up for discussion Tunkl v. Regents of University of
California (1963) 60 Cal.2d 92.
Tunkl is a case in which the plaintiff signed an agreement that
relieved the defendant hospital from liability for the wrongful
acts of the defendant’s employees. The plaintiff was required to
sign the agreement to gain admission into the defendant’s
hospital. Thereafter, the plaintiff brought suit against the
hospital claiming that he was injured as a result of the negligence
of hospital employees. The trial court upheld the release. On
appeal, the California Supreme Court invalidated the release
agreement on the grounds that it affected the “public interest.
“The court set forth the following six factors which it deemed
relevant in determining whether a contract affects the public
interest: (1) It concerns a business of a type 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; (3) the party holds himself out as willing
to perform this service for any member of the public who seeks
it, or at least for any member coming within certain established
standards; (4) as a result 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 his
services; (5) in exercising a superior bargaining power the party
confronts the public with a standardized adhesion contract of
exculpation, and makes no provision whereby a purchaser may
pay additional reasonable fees and obtain protection against
negligence; (6) as a result of the transaction, the person or
property of the purchaser is placed under the control of the

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seller, subject to the risk of carelessness by the seller or his
agent.
Applying the Tunkl factors to the facts here, several distinctions
are readily apparent. First, parachute jumping is not subject to
the same level of public regulation as is the delivery of medical
and hospital services. Second, the Tunkl agreement was executed
in connection with services of great importance to the public
and of practical necessity to anyone suffering from a physical
infirmity or illness. Parachute jumping, on the other hand, in not
an activity of great importance to the public and is a matter of
necessity to no one.
Finally, because of the essential nature of medical treatment, the
consuming party in Tunkl had little or no choice but to accept
the terms offered by the hospital. Defendant had no decisive
advantage in bargaining power over plaintiff by virtue of any
“essential services” offered by defendant. When referring to
“essential services” the court in Tunkl clearly had in mind
medical, legal, housing, transportation or similar services which
must necessarily be utilized by the general public. Purely
recreational activities such as sport parachuting can hardly be
considered “essential.”
In sum, measuring the transaction here against the Tunkl factors,
we can see no logical reason for extending the “public interest”
limitation on the freedom to contract to the exculpatory
agreement here relied on by defendant.
There are no California cases directly on point dealing with
exculpatory contracts in the context of high risk sports activities,
but there are an ample number on the books in other states.
Jones v. Dressel (Colo. 1981) 623 P.2d 370, a Colorado case, was
decided on very similar facts by means of a summary judgment.
The case is especially persuasive because the Colorado court
relied extensively on Tunkl in arriving at its holding that the
exculpatory agreement there relied upon by an operator of
business furnishing sky diving facilities did not fall within the
ambit of agreements proscibed as against the public interest.~

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Accordingly, following both logic and the persuasive holdings
cited from other jurisdictions, we hold that the exculpatory
agreement here under discussion is not against the “public
interest” so as to bring it within the prohibitions of section 1668
of the Civil Code because contrary to “the policy of the law.”
We come now to the narrower issue of whether the exculpatory
contract here relied upon as an affirmative defense by defendant
should not be enforced because, as to plaintiff, it would be
“unconscionable.”~ Plaintiff has made the picturesque if not
ludicrous contention that he “was led to believe” that the urgent
thing confronting him at the time he signed and initialed the
agreement was to sign up to purchase a photograph, and that as
a consequence he did not realize the significance of the
agreement when he signed it. He makes this contention despite
the fact that his initials appear immediately adjacent to the
capitalized words in bold-faced type, “Agreement & Release of
Liability.” It is hard to imagine that plaintiff, after having
initialed the agreement in three places and signed it in one could
have harbored any reasonable expectations other than what was
unambiguously recited in the title and text of the agreement.
Because the agreement, in both its language and format, was not
one which could even remotely operate to defeat the reasonable
expectations of plaintiff and hence be unconscionable if
enforced, we hold that it did not so operate and hence that its
enforcement against him was not unconscionable.

Case: Hiett v. Lake Barcroft Community Association
The following case shows the flexibility of the public policy doctrine
to invalidate waivers.

Hiett v. Lake Barcroft Community Association
Supreme Court of Virginia
June 5, 1992
Robert David Hiett v. Lake Barcroft Community Association,
Inc., et al. Record No. 911395. Justice Keenan delivered the
opinion of the Court.

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Justice BARBARA MILANO KEENAN:
The primary issue in this appeal is whether a pre-injury release
from liability for negligence is void as being against public
policy.
Robert D. Hiett sustained an injury which rendered him a
quadriplegic while participating in the “Teflon Man Triathlon”
(the triathlon) sponsored by the Lake Barcroft Community
Association, Inc. (LABARCA). The injury occurred at the start
of the swimming event when Hiett waded into Lake Barcroft to
a point where the water reached his thighs, dove into the water,
and struck his head on either the lake bottom or an object
beneath the water surface.
Thomas M. Penland, Jr., a resident of Lake Barcroft, organized
and directed the triathlon. He drafted the entry form which all
participants were required to sign. The first sentence of the form
provided:
In consideration of this entry being accept[ed]
to participate in the Lake Barcroft Teflon Man
Triathlon I hereby, for myself, my heirs, and
executors waive, release and forever discharge
any and all rights and claims for damages which
I may have or m[a]y hereafter accrue to me
against the organizers and sponsors and their
representatives, successors, and assigns, for any
and all injuries suffered by me in said event.
Evelyn Novins, a homeowner in the Lake Barcroft subdivision,
asked Hiett to participate in the swimming portion of the
triathlon. She and Hiett were both teachers at a school for
learning-disabled children. Novins invited Hiett to participate as
a member of one of two teams of fellow teachers she was
organizing. During a break between classes, Novins presented
Hiett with the entry form and he signed it.
Hiett alleged in his third amended motion for judgment that
LABARCA, Penland, and Novins had failed to ensure that the
lake was reasonably safe, properly supervise the swimming
event, advise the participants of the risk of injury, and train
them how to avoid such injuries. Hiett also alleged that Penland

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and Novins were agents of LABARCA and that Novins’s failure
to direct his attention to the release clause in the entry form
constituted constructive fraud and misrepresentation.
In a preliminary ruling, the trial court held that, absent fraud,
misrepresentation, duress, illiteracy, or the denial of an
opportunity to read the form, the entry form was a valid
contract and that the pre-injury release language in the contract
released the defendants from liability for negligence. The trial
court also ruled that such a release was prohibited as a matter of
public policy only when it was included: (1) in a common
carrier’s contract of carriage; (2) in the contract of a public utility
under a duty to furnish telephone service; or (3) as a condition
of employment set forth in an employment contract.
Pursuant to an agreement between the parties, the trial court
conducted an evidentiary hearing in which it determined that
there was sufficient evidence to present to a jury on the issue of
constructive fraud and misrepresentation. Additionally, the trial
court ruled that as a matter of law Novins was not an agent of
LABARCA, and it dismissed her from the case.
The remaining parties proceeded to trial solely on the issue
whether there was constructive fraud and misrepresentation by
the defendants such as would invalidate the waiver-release
language in the entry form. After Hiett had rested his case, the
trial court granted the defendants’ motion to strike the evidence.
This appeal followed.
Hiett first argues that the trial court erred in ruling that the preinjury release provision in the entry form did not violate public
policy. He contends that since the decision of this Court in
Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975
(1890), the law in Virginia has been settled that an agreement
entered into prior to any injury, releasing a tortfeasor from
liability for negligence resulting in personal injury, is void
because it violates public policy. Hiett asserts that the later cases
of this Court have addressed only the release of liability from
property damage or indemnification against liability to third
parties. Thus, he contends that the holding in Johnson remains
unchanged. In response, LABARCA and Novins argue that the

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decisions of this Court since Johnson have established that preinjury release agreements such as the one before us do not
violate public policy. We disagree with LABARCA and Novins.
The case law in this Commonwealth over the past one hundred
years has not altered the holding in Johnson. In Johnson, this Court
addressed the validity of a pre-injury release of liability for future
negligent acts. There, the decedent was a member of a firm of
quarry workers which had entered into an agreement with a
railroad company to remove a granite bluff located on the
company’s right of way. The agreement specified that the
railroad would not be liable for any injuries or death sustained
by any members of the firm, or its employees, occurring from
any cause whatsoever.
The decedent was killed while attempting to warn one of his
employees of a fast-approaching train. The evidence showed
that the train was moving at a speed of not less than 25 miles
per hour, notwithstanding the railroad company’s agreement
that all trains would pass by the work site at speeds not
exceeding six miles per hour.
In holding that the release language was invalid because it
violated public policy, this Court stated:
[T]o hold that it was competent for one party to
put the other parties to the contract at the
mercy of its own misconduct … can never be
lawfully done where an enlightened system of
jurisprudence prevails. Public policy forbids it,
and contracts against public policy are void.
This Court emphasized that its holding was not based on the
fact that the railroad company was a common carrier. Rather,
this Court found that such provisions for release from liability
for personal injury which may be caused by future acts of
negligence are prohibited “universally.”
As noted by Hiett, the cases following Johnson have not eroded
this principle. Instead, this Court’s decisions after Johnson have
been limited to upholding the right to contract for the release of

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liability for property damage, as well as indemnification from
liability to third parties for such damage.
In C. & O. Ry. Co. v. Telephone Co., 216 Va. 858 (1976), this
Court upheld a provision in an agreement entered into by the
parties to allow the telephone company to place underground
cables under a certain railway overpass. In the agreement, the
telephone company agreed to release the C & O Railway
Company from any damage to the wire line crossing and
appurtenances. In upholding this property damage stipulation,
this Court found that public policy considerations were not
implicated.~
Other cases decided by this Court since Johnson have upheld
provisions for indemnification against future property damage
claims. In none of these cases, however, did the Court address
the issue whether an indemnification provision would be valid
against a claim for personal injury.
[W]e conclude here, based on Johnson, that the pre-injury release
provision signed by Hiett is prohibited by public policy and,
thus, it is void.~

Questions to Ponder About Hiett v. LABARCA
A. Does this case mean that a release of liability for parachuting (of
the kind found in Hulsey v. Elsinore Parachute Center) would not be
upheld in Virginia? (A quick search indicates that there is no shortage
of skydiving centers in Virginia.)
B. Is it beneficial for triathlon organizers to make entrants sign
releases – even if those releases are doomed to be struck down in
court as against public policy?
C. If you were an attorney for LABARCA after this case, what would
you recommend they do going forward to protect themselves from
liability?

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Public Policy Exceptions to Express Agreements to Assume
Risk
As is apparent in both Hulsey v. Elsinore Parachute Center and Hiett v.
LABARCA, courts impose a public policy limitation to agreements
to waive negligence liability.
Where the defendant is providing some kind of service that is
essential to a normal, modern life, and where there is unequal
bargaining power between the plaintiff and the defendant, the public
policy exception is likely to bar the defendant from using exculpatory
releases to avoid liability for negligence. Certain traditional categories
for the public-policy exception are hospitals, physicians, dentists,
public utilities, professional bailiees (e.g., parking lots), and common
carriers (e.g., airlines). It is not hard to imagine that if such releases
were allowed for hospitals and physicians, it would be impossible to
receive medical treatment without having to release claims for
negligence. Indeed, the UCLA Medical Center actually tried this,
conditioning their treatment on a patient’s waiver of any future claim
for negligence. Patients had to sign a document called “Conditions of
Admission,” which included the following:
Release: The hospital is a nonprofit, charitable
institution. In consideration of the hospital and
allied services to be rendered and the rates
charged therefor, the patient or his legal
representative agrees to and hereby releases The
Regents of the University of California, and the
hospital from any and all liability for the
negligent or wrongful acts or omissions of its
employees, if the hospital has used due care in
selecting its employees.

This was tested in Tunkl v. Regents of University of California, 60 Cal.2d
92 (Cal. 1963). Justice Trobriner wrote for the court:
While obviously no public policy opposes
private, voluntary transactions in which one
party, for a consideration, agrees to shoulder a
risk which the law would otherwise have placed
upon the other party, the above circumstances
pose a different situation. In this situation the

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releasing party does not really acquiesce
voluntarily in the contractual shifting of the risk,
nor can we be reasonably certain that he
receives an adequate consideration for the
transfer. Since the service is one which each
member of the public, presently or potentially,
may find essential to him, he faces, despite his
economic inability to do so, the prospect of a
compulsory assumption of the risk of another's
negligence. The public policy of this state has
been, in substance, to posit the risk of
negligence upon the actor; in instances in which
this policy has been abandoned, it has generally
been to allow or require that the risk shift to
another party better or equally able to bear it,
not to shift the risk to the weak bargainer.

Tunkl has been followed just about everywhere. Otherwise, one
imagines that every hospital would follow UCLA’s lead.
Theoretically, if a grocery store or hotel tried to make patrons agree
to such a release, such releases would be invalidated as well. Grocery
stores and hotels are essential services in modern life.
By contrast, skydiving is about as nonessential as a service could be.
Courts in many states have thus refused to find a public policy
exception to waivers for parachuting services.
A good example of a case that would seem to be on the bubble is a
fitness center. Fitness advocates and physicians like to talk about
regular exercise as being “essential.” But Maryland’s high court held
that going to the gym was nonessential, and so no there was no
public-policy exception for an express waiver signed by customer. See
Seigneur v. National Fitness Institute, Inc., 752 A.2d 631 (Md. 2000).
Another case that would seem be in the gray zone is a ski resort. In
Vermont, a general exculpatory agreement used by a ski resort was
found to be invalid. See Dalury v. S-K-I, Ltd., 164 Vt. 329 (Vt. 1995).
Another category of defendants traditionally barred from using
agreements to avoid negligence liability are manufacturers of
products. Products liability – a complicated area – is a subject for
Volume Two of this casebook. But for now it is enough to know that

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manufacturers and retailers cannot escape liability from property
damage and personal injury caused by defective products.

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Part III:
Liability Relating to
Healthcare

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11. Common Law Liability in
the Healthcare Context
“Like a surgeon – hey! – cuttin’ for the very first time.
Like a surgeon! Here’s a waiver, for you to sign.”
– “Weird Al” Yankovic, 1985

In General
The healthcare setting is a fertile one for torts. So many things can go
wrong in the course of diagnoses, drug treatments, and surgeries. Of
course, automobiles and roadways provide many opportunities for
accidents as well, but hospitals and physicians tend to have one thing
that the average driver does not – deep pockets. The confluence of
injuries to fuel complaints and money to pay judgments makes
healthcare a uniquely important setting for tort law.
At this point, you have learned the basics of negligence law, and thus
you know most of what is relevant to lawsuits against physicians and
hospitals. But there are a few important things to add. This chapter
covers some additional common-law doctrine that applies to
healthcare torts. The next chapter concerns the effect of a federal
statute, ERISA, which often blocks plaintiffs from suing healthinsurers and HMOs in tort.
There are three aspects of the common-law torts in the healthcare
context that are covered in this chapter.
First, in a medical malpractice action for negligence, the standard of
care is different. As we saw – in particular with The T.J. Hooper – the
custom or standard practice of an industry is not dispositive when it
comes to determining the standard of care. That is to say, the
standard practice of an entire industry can be found unreasonable
and thus held to fall below the standard of care to which defendants
are held in negligence actions. That is not the case, however, with
medical malpractice. Medical custom – what physicians generally call
the “standard practice” or “standard of care” – is the benchmark for
determining breach of duty in the context of medical malpractice

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negligence claims. This means that what is called “standard of care”
in medical jargon ends up dictating what we refer to as the “standard
of care” in legal jargon.
Second, the intentional tort of battery – to be dealt with in a more
general way in the second volume of this casebook – has a unique
role in the medical setting. The healthcare version of battery, called
medical battery, provides a way for patients to sue physicians who
treat them beyond the scope of the patient’s consent. Consistent with
battery doctrine, and in distinction to negligence, a medical battery
action has no requirement of showing damages or an injury.
Third, there is a kind of claim that is unique to healthcare: the action
for informed consent. The informed consent action is generally
available where a patient was not apprised of an important risk
necessary to make an informed decision about treatment, and the
patient then suffers the negative consequence associated with the
undisclosed risk.

The Standard of Care for Healthcare Professionals in
Negligence Actions
Basics
Most cases falling under the label “medical malpractice” are
negligence cases. Examples of medical malpractice negligence actions
would include suits arising from an internist who prescribes a drug
contraindicated by something in the patient’s history or a radiologist
who fails to see a tumor that other radiologists would have seen.
There is a key difference between negligence law generally and
negligence law as applied to physicians: the standard of care.
Physicians are considered professionals, and for professionals, the
standard of care is not that of a reasonable person, but is instead the
knowledge and skill of the minimally competent member of
that professional community. Another way of putting this is that
custom becomes dispositive in cases of professional negligence. Is it
the prevailing custom for neurosurgeons to order an MRI scan
before undertaking a scheduled brain surgery? If so, then failing to do
is a breach of the duty of care. If not, then there is no breach – even

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if the plaintiff can demonstrate that a practice of doing so would be
prudent.
This way of setting the standard of care works both for and against
physicians. On the one hand, hewing to custom keeps a physician
insulated from malpractice judgments – even where the hypothetical
reasonable physician might be more cautious. On the other hand,
deviating from custom – even when doing so would seem reasonable
– exposes the physician to liability.
This standard for professional negligence is objective, and it is
calibrated in accordance with the community of professionals in the
defendant’s practice. If the defendant is a general dentist, then the
standard is the minimally qualified member of the relevant
community of general dentists. If the defendant is a cardiologist, then
the standard is the minimally qualified member of the relevant
community of cardiologists. By saying the standard is objective, we
mean that it is the same standard for all members of the professional
community. That is, the standard of care is not adjusted in favor of
professionals who have lower levels of experience, skill, or
knowledge. Thus, it does not matter whether a physician is just out of
medical school or has been in practice for 30 years. Also, the
standard of practice will evolve over time. What starts as an obscure
technique may gain enough acceptance to become standard practice.
Thus, negligence law puts the onus on physicians and other
healthcare professionals to stay up to date.
One thing to bear in mind: The objective standard of care for
professionals applies only when they are accused of negligence in the
course of their professional practice. If an orthopedist drives her car
into your mailbox, the standard applied will be that of the
hypothetical reasonable person and not that of the knowledge and
skill of the minimally competent orthopedist.
The Role of Expert Testimony
The fact that the professional standard of care is defined with
objective reference to the professional community means that it is
almost always the case that expert testimony will be needed to
establish the standard of care. In practice, this makes medical

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negligence actions expensive to litigate. It also changes the role of the
jury. Instead of jurors asking themselves what is reasonable, jurors
are generally left to choose between the competing views of the
plaintiff’s expert and the defendant’s expert. Thus, a medical
negligence case can often come down to whether the plaintiff’s
expert or the defendant’s seems more knowledgeable and credible.
Expert testimony is not always necessary. Some cases can be
prosecuted based on common knowledge. If a surgeon mistakenly
cuts off the wrong limb or removes the wrong kidney, no expert
testimony is necessary to show that the standard of care has been
breached. Another example is leaving foreign objects inside a patient,
such as surgical sponges. In fact, a sponge left inside the body cavity
is a leading example of the doctrine of res ipsa loquitor in action. One
way to think about cases such as these is that they really are not
medical malpractice cases at all, since medical knowledge and skill are
not at issue. Most medical malpractice cases, however, involve a
question of professional judgment. In such cases, the question of
whether the physician used appropriate professional judgment is that
case will require the testimony of a medical expert.
How the Professional Community is Defined
Since the standard of care is defined by the professional community,
a key question concerns how to define the “community.” The
analysis of what constitutes the relevant community involves issues
of both specialty and geography.
Exactly what skills and knowledge a physician is expected to have
depends on whether or not the physician has a specialty, and, if so,
what that specialty is. Physicians who are general practitioners are
held to a different and lower standard than specialists. If a general
practitioner prescribes an aerosol inhaler for asthma, the standard is
different and lower than a pulmonologist who writes the prescription.
For the general practitioner, the standard of care is set by the
knowledge and skill level of a minimally competent general
practitioner. For the pulmonologist, it is what is the knowledge and
skill level of a pulmonologist. By the way, holding one’s self out to

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the public as a specialist is generally what counts for being held to the
higher standard of knowledge and skill of a specialist.
Geography may be relevant as well. Historically, professional
communities were conceived of as being local. If the question of
negligence concerns a physician practicing in Ridgefield, population
20,000, then the standard of care is set by the customs, skills, and
level of knowledge of Ridgefield physicians. So the question of
whether a physician in a particular town was negligent required
getting experts from that city to testify as to the standard practice in
that town. Such a requirement, as you might imagine, works greatly
to the benefit of defendant physicians in small cities and towns. First,
it allows small-town medical care to be held to a lower standard than
in the big cities. And the lower the standard, the easier it is for
physicians to escape liability. But there is another, sharper advantage
for physicians in smaller locales when the standard of care is defined
locally. Professionals in small locals are often unwilling to testify
against one another. Without an expert to testify as to the standard of
care in the community, the lawsuit may be stopped in its tracks.
Because of the recurrent problem of a lack of willing experts, the
trend is away from defining professional communities in this way.
The more favored alternatives are to use a national standard, or to
use a nonparticularized local standard – that is, define the standard
with reference to a similar city or town. The similar-communities
standard means that experts for small towns and cities can be found
across the country if necessary.
A typical way for courts to define professional communities is to use
a similar-geographical-place standard for general practitioners and to
use a national standard for members of a medical specialty. Thus, a
cardiothoracic surgeon practicing in a city of a few thousand people
will be held to the same standard as cardiothoracic surgeons in a
megalopolis of millions.
Problems for Professional Medical Negligence
A. Delinda, a medical doctor practicing as a general practitioner, was
trying her best when she prescribed sploramoxacin to her patient,
Perry. Based on lab results, Delinda figured that Perry had a bacterial

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infection that was causing him pain in his lower left side – around the
site of a deep cut he had gotten while hiking. Delinda also knew that
sploramoxacin was a good broad-spectrum antibiotic. Most
physicians would have done exactly what Delinda did. Unknown to
Delinda, the Nashlanta Journal of Medicine had published an article
in the previous week showing that sploramoxacin was
contraindicated in cases of lower-left-side pain because of a newly
identified condition named Lower Left Syndrome. (The Nashlanta
Journal of Medicine is a relatively obscure journal which few people
read.) While Lower Left Syndrome presents with all the symptoms of
a bacterial infection, it is in fact caused by a eukaryotic plasmodium.
Generally, the body’s natural defenses will destroy the plasmodia in
two to three weeks without treatment. If, however, sploramoxacin is
administered in patients with Lower Left Syndrome, the body’s
natural defenses against the plasmodium are lowered, and the
plasmodium will attack the liver, causing liver failure. This is what
happened to Perry. Will Perry prevail in a lawsuit against Delinda?
B. Same as A., but suppose Delinda had happened to have read the
article on Lower Left Syndrome before she saw Perry. Different
result?
C. Same as A., but suppose the standard of practice in a case such as
Perry’s was to use an expensive test that not only indicates infection,
but also discerns the difference between a bacterial infection and a
plasmodial infection. (And note that antibiotics do not work against
plasmodia.) Different result?
Professional Negligence Outside the Healthcare Setting
The professional standard of negligence that applies to medical
doctors and dentists applies to non-healthcare professionals as well,
such as accountants, architects, engineers, veterinarians, and
attorneys. That is to say that these professionals, when sued for
negligence in the course of their professional practice, are held to a
standard of care that is dictated by the custom or standard of practice
that prevails in the relevant community of professionals – what the
reasonable person would do is irrelevant. (Attorney malpractice is, of
course, an important area of the law for budding lawyers to be

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familiar with. But we will leave an in-depth treatment of the topic for
your professional responsibility course.)
Whether or not something counts as a “profession” can be a tricky
question. In general, a profession for the purpose of assigning a
standard of care in negligence is one that consists primarily of
intellectual labor and that requires higher education.
Plumbers, electricians, and carpenters, for instance, are not
considered professionals in the negligence context – even though
their work requires a great deal of knowledge. Meanwhile, surgeons
are considered professionals, even though their work might be
considered primarily manual as opposed to intellectual.

Medical Battery
Medical battery is an intentional tort cause of action that can be
alleged against a physician or other healthcare provider who performs
a course of treatment without the patient’s consent.
What we are calling “medical battery” is not really a separate tort;
instead it is really just a particular factual context for the tort of
battery. The intentional torts, including battery, are covered later in
this casebook. So, assuming you are proceeding through this
casebook in order, and you have not studied battery yet, you will
need the basics of the doctrine to be able to understand actions for
medical battery.
The intentional tort of battery requires that the defendant inflict a
harmful or offensive touching on the plaintiff’s body. Consent is an
affirmative defense. To break it down into elements, battery –
including medical battery – requires: (1) an act; (2) intent; (3) actual
and proximate causation; (4) a physical touching of the plaintiff’s
body; and (5) harmfulness or offensiveness. The fifth element and
the affirmative defense of consent are key to preventing the tort of
battery from getting out of control. People touch each other’s bodies
all the time, rarely accruing claims for battery. The reason why most
touches do not create liability is that nearly all touches are either not
harmful or offensive, or else they are consented to.

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Now that you understand the basics of battery, you can see some key
differences between the negligence cause of action and the battery
cause of action. Unlike a prima facie case for negligence, a claim for
battery does not require an injury. That makes a battery claim, at least
in that sense, easier to allege. But there is a tradeoff. Unlike
negligence, which works for accidents, a claim for battery requires
intent. That makes a battery claim harder to allege.
In a later chapter on that covers battery in general, we will explore
more of what it means for a touching to be “harmful or offensive.”
In the medical context, however, this is not a difficult requirement
for plaintiffs to meet. Cutting into someone or introducing a medical
instrument into a bodily orifice certainly counts as harmful or
offensive.
The key issue for medical battery is generally whether there was
consent. Physicians touch patients all the time, and almost always,
that touching is in accordance with the patient’s consent. To be valid,
consent does not have to be in writing. It does not even need to
expressed orally. Consent can be implied. When a patient opens up
his mouth to say “ahh,” permission to insert a tongue depressor into
the patients’ mouth is implied.
There is one important and constantly recurring circumstance in
which physicians touch patients without any consent whatsoever: the
emergency room. When an unconscious patient is brought into an
emergency room, the consent to touching the patient is said to be
“implied by law.” This means that even though there is no actual
consent, the law will pretend that there is consent for public-policy
reasons. After all, if every unconscious patient given emergency
treatment was able to win a lawsuit for battery, there would be a
steep decline in emergency services.
Now that you have a firmer grasp of when medical battery claims will
not arise, you can more readily discern the relatively rare
circumstances in which they will arise. In particular, a common
scenario that creates liability for medical battery is when a physician
goes further with a touching than the patient consented to.

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Case: Mohr v. Williams
The following case is the classic example of how a medical battery
results when a physician goes beyond the patient’s scope of consent.

Mohr v. Williams
Supreme Court of Minnesota
June 23, 1905
ANNA MOHR v. CORNELIUS WILLIAMS. Nos. 14,312,
14,360 - (94, 95). Opinion by Brown, J., Jaggard, J. took no part.
Justice CALVIN L. BROWN:
Defendant is a physician and surgeon of standing and character,
making disorders of the ear a specialty, and having an extensive
practice in the city of St. Paul. He was consulted by plaintiff,
who complained to him of trouble with her right ear, and, at her
request, made an examination of that organ for the purpose of
ascertaining its condition. He also at the same time examined
her left ear, but, owing to foreign substances therein, was unable
to make a full and complete diagnosis at that time. The
examination of her right ear disclosed a large perforation in the
lower portion of the drum membrane, and a large polyp in the
middle ear, which indicated that some of the small bones of the
middle ear (ossicles) were probably diseased. He informed
plaintiff of the result of his examination, and advised an
operation for the purpose of removing the polyp and diseased
ossicles. After consultation with her family physician, and one or
two further consultations with defendant, plaintiff decided to
submit to the proposed operation. She was not informed that
her left ear was in any way diseased, and understood that the
necessity for an operation applied to her right ear only. She
repaired to the hospital, and was placed under the influence of
anesthetics; and, after being made unconscious, defendant made
a thorough examination of her left ear, and found it in a more
serious condition than her right one. A small perforation was
discovered high up in the drum membrane, hooded, and with
granulated edges, and the bone of the inner wall of the middle
ear was diseased and dead. He called this discovery to the
attention of Dr. Davis – plaintiff’s family physician, who

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attended the operation at her request – who also examined the
ear and confirmed defendant in his diagnosis. Defendant also
further examined the right ear, and found its condition less
serious than expected, and finally concluded that the left, instead
of the right, should be operated upon; devoting to the right ear
other treatment. He then performed the operation of
ossiculectomy on plaintiff’s left ear; removing a portion of the
drum membrane, and scraping away the diseased portion of the
inner wall of the ear. The operation was in every way successful
and skilfully performed. It is claimed by plaintiff that the
operation greatly impaired her hearing, seriously injured her
person, and, not having been consented to by her, was wrongful
and unlawful, constituting an assault and battery; and she
brought this action to recover damages therefor.~
The trial in the court below resulted in a verdict for plaintiff for
$14,322.50. Defendant thereafter moved~ for a new trial on the
ground, among others, that the verdict was excessive~. The trial
court~ granted a new trial on the ground, as stated in the order,
that the damages were excessive~ appearing to have been given
under the influence of passion and prejudice~. [W]hether a new
trial upon the ground of excessive or inadequate damages
should be granted or refused, or whether the verdict should be
reduced, rests in the sound judicial discretion of the trial court~.
[W]e are clear the trial court did not abuse its discretion in
granting defendant’s motion for a new trial, and its order on
plaintiff’s appeal is affirmed.
We come then to a consideration of the questions presented by
defendant’s appeal from the order denying his motion for
judgment notwithstanding the verdict. It is contended that final
judgment should be ordered in his favor for the following
reasons: (a) That it appears from the evidence received on the
trial that plaintiff consented to the operation on her left ear. (b)
If the court shall find that no such consent was given, that,
under the circumstances disclosed by the record, no consent was
necessary. (c) That, under the facts disclosed, an action for
assault and battery will not lie; it appearing conclusively, as
counsel urge, that there is a total lack of evidence showing or

410

tending to show malice or an evil intent on the part of
defendant, or that the operation was negligently performed.
We shall consider first the question whether, under the
circumstances shown in the record, the consent of plaintiff to
the operation was necessary. If, under the particular facts of this
case, such consent was unnecessary, no recovery can be had, for
the evidence fairly shows that the operation complained of was
skilfully performed and of a generally beneficial nature. But if
the consent of plaintiff was necessary, then the further questions
presented become important. This particular question is new in
this state. At least, no case has been 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 evidence 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 doubted 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 – is the subject of
universal acquiescence, and this right necessarily forbids a
physician or surgeon, however skilful 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.”

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1 KINKEAD TORTS, § 375, states the general rule on this subject
as follows: “The patient must be the final arbiter as to whether
he shall 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 a legal right. 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 extent 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 medical 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~, but we are aware
of no rule or principle of law which would extend to [a
physician] 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 exercise 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. If a person
should be injured to the extent of rendering him unconscious,
and his injuries were of such a nature as to require prompt
surgical attention, a physician called to attend him would be
justified in applying such medical or surgical treatment as might

412

reasonably be necessary for the preservation of his life or limb,
and consent on the part of the injured person would be implied.
And again, if, in the course of an operation to which the patient
consented, the physician should discover conditions not
anticipated before the operation was commenced, and which, if
not removed, would endanger the life or health of the patient,
he would, though no express consent was obtained or given, be
justified in extending the operation to remove and overcome
them.
But such is not the case at bar. The diseased condition of
plaintiff’s left ear was not discovered in the course of an
operation on the right which was authorized, but upon an
independent examination of that organ, made after the
authorized operation was found unnecessary.~
The last contention of defendant is that the act complained of
did not amount to an assault and battery. This is based upon the
theory that~ the absence of a showing that defendant was
actuated by a wrongful intent, or guilty of negligence, relieves
the act of defendant from the charge of an unlawful assault and
battery.
We are unable to reach that conclusion,~ [i]f the operation was
performed without plaintiff’s consent, and the circumstances
were not such as to justify its performance without, it was
wrongful; and, if it was wrongful, it was unlawful. As remarked
in 1 JAGGARD, TORTS, 437, every person has a right to complete
immunity of his person from physical interference of others,
except in so far as contact may be necessary under the general
doctrine of privilege; and any unlawful or unauthorized touching
of the person of another, except it be in the spirit of pleasantry,
constitutes an assault and battery. In the case at bar,~ whether
defendant’s act in performing the operation upon plaintiff was
authorized was a question for the jury to determine. If it was
unauthorized, then it was, within what we have said, unlawful. It
was a violent assault, not a mere pleasantry; and, even though no
negligence is shown, it was wrongful and unlawful.~
The amount of plaintiff’s recovery, if she is entitled to recover at
all, must depend upon the character and extent of the injury

413

inflicted upon her, in determining which the nature of the
malady intended to be healed and the beneficial nature of the
operation should be taken into consideration, as well as the
good faith of the defendant.
Orders affirmed.

Check-Your-Understanding Questions About Mohr
A. Would Anna Mohr have been able to sue in negligence? Why or
why not?
B. Would Mohr have had a cause of action if she had been brought
to the hospital unconscious and the surgery had been necessary on an
emergency basis?
Questions to Ponder About Mohr
A. Do you think plaintiffs such as Anna Mohr should have a cause of
action even in circumstances such as these where no harm is actually
done?
B. If there is an interest in making sure that physicians do not exceed
the scope of a patient’s consent, could that be better handled through
professional rules that are enforced by licensing boards? Or is the tort
system a proper tool to use? Why or why not?

Informed Consent
An informed-consent action alleges that a patient was harmed by a
physician’s failure to disclose risks associated with medical treatment.
Informed-consent actions are something of a battery-negligence
hybrid. That is, they have some things in common with the
intentional tort of battery, and some things in common with the tort
of negligence. As a matter of pleading, informed-consent actions
might be brought as either an intentional tort or as negligence.
Indeed, whether an informed-consent action is pled as an intentional
tort or negligence may have important ramifications for what
deadline applies for purposes of the statute of limitations (which
typically is longer for negligence). Whether an informed-consent
action is brought as an intentional tort or a negligence claim may also
be important for determining whether a judgment would be covered

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by insurance (generally insurance covers negligence but not battery).
But as a conceptual matter, it is probably best to think of informedconsent actions as a breed of their own.
In general, an informed-consent action requires the following to be
proved:
1. A risk should have been disclosed.
2. The risk was not disclosed.
3. The patient would have made a different
decision about treatment if the risk had been
disclosed.
4. The patient was injured as a result.

Let’s look at an example of an easy prima facie case.

Example: Spinal Injection – Suppose a man went to his
physician with a complaint of moderate back pain. The
physician suggested injecting a new drug directly into the
spinal canal. The trials of this drug, used in this way, indicated
a one-in-10 chance that permanent partial paralysis would
result. The physician did not, however, disclose this risk. If
the physician had disclosed the risk, the patient never would
have agreed to the procedure – especially since the back pain
was not severe. But, being ignorant of the risk, the patient
was consented to the procedure. Unfortunately, the patient
suffered paralysis as a result. Is there a good claim for
informed consent? Yes. The patient will prevail in an
informed-consent action. Why? There was a risk that should
have been disclosed, the risk was not disclosed, the patient
would have made a different decision if the risk had been
disclosed, and the patient was injured. All the elements are
met.
Let’s discuss the requirements of an informed-consent action in a bit
more detail:
1. The risk should have been disclosed. – The risk must be of the type that
should have been disclosed in order for the patient to make an
informed decision about the course of treatment. There are two

415

schools of thought on how to decide if the risk was of the type that
should have been disclosed. One is to judge it by the standard of the
reasonable physician. If the reasonable physician would have
disclosed the risk, then this element of the informed-consent action
has been fulfilled. This approach is sometimes called the physician
rule. The other school of thought that the risk should be disclosed if
it would be “material” to the reasonable patient. The word “material”
here is related to the word “matter.” A material risk is one that would
matter to the patient’s decision. This approach is sometimes called the
patient rule.
2. The risk was not disclosed. The physician must omit to disclose the
risk at issue. This requirement is generally a question of factual
evidence to be submitted to the jury. In order to have evidence of the
disclosure of risks readily available, it is common for physicians to
ask patients who are about to undergo surgery or other invasive
procedures to sign documents acknowledging that the risks have
been explained to them.
3. The patient would have made a different decision about treatment if the risk
had been disclosed. If, despite the risk, the patient would have gone
ahead with the course of treatment anyway, then there is no claim.
This requirement is essentially an actual causation requirement. If the
patient would have had the treatment anyway, then it is not possible
to say that but for the failure of the physician to disclose the risk, the
patient would not have suffered the injury. There are two different
approaches to this causation requirement. Some courts use a
“subjective” standard, asking whether the particular plaintiff who is
bringing the suit would have made a different decision. Other courts
use an “objective” standard, asking whether the hypothetical
reasonable patient would have made a different decision in awareness
of the risk. The objective standard represents a slight departure from
straightforward but-for causation.
4. The patient was thereby injured. In general, the patient must have
suffered a bad outcome that counts as an injury. It is clear that an
injury is required when the informed-consent action is brought as a
form of negligence. In the absence of an injury, it may be possible to
allege a claim of informed-consent as a battery action.

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Case: Largey v. Rothman
The following is a leading case discussing in depth the question of
whether informed consent action should use the physicianperspective to determine what risks should be disclosed (the
physician rule) or the patient-perspective to determine what risks are
material (the patient rule). You will notice that this case generally
refers to the physician rule as the “‘professional standard’ rule,” and
the patient rule as the “‘prudent patient’ rule.”

Largey v. Rothman
Supreme Court of New Jersey
May 5, 1988
JANICE LARGEY AND JOSEPH LARGEY, PLAINTIFFSAPPELLANTS,
v.
DONALD
ROTHMAN,
M.D.,
DEFENDANT-RESPONDENT. No. A-52. Justices Clifford,
Handler, Pollock, Garibaldi, and Stein. All for reversal with
none opposed.
PER CURIAM
This medical malpractice case raises an issue of a patient’s
informed consent to treatment. The jury found that plaintiff
Janice Largey had consented to an operative procedure
performed by the defendant physician. The single question
presented goes to the correctness of the standard by which the
jury was instructed to determine whether the defendant, Dr.
Rothman, had adequately informed his patient of the risks of
that operation.
The trial court told the jury that when informing the plaintiff
Janice Largey of the risks of undergoing a certain biopsy
procedure, described below, defendant was required to tell her
“what reasonable medical practitioners in the same or similar
circumstances would have told their patients undertaking the
same type of operation.” By answer to a specific interrogatory
on this point, the jurors responded that defendant had not
“fail[ed] to provide Janice Largey with sufficient information so
that she could give informed consent” for the operative
procedure. On plaintiffs’ appeal the Appellate Division affirmed

417

in an unreported opinion, noting that the trial court’s charge on
informed consent followed the holding in Kaplan v. Haines, 96
N.J. Super. 242, 257 (App.Div. 1967), which this Court affirmed
on the basis of the Appellate Division’s opinion, 51 N.J. 404
(1968).
Plaintiffs argued below, and repeat the contention here, that the
proper standard is one that focuses not on what information a
reasonable doctor should impart to the patient (the
“professional” standard) but rather on what the physician
should disclose to a reasonable patient in order that the patient
might make an informed decision (the “prudent patient” or
“materiality of risk” standard). The latter is the standard
announced in Canterbury v. Spence, 464 F.2d 772 (D.C.Cir. 1972).
The Appellate Division rejected the Canterbury standard, not
because it disagreed with that standard but because the court felt
itself bound, correctly, by the different standard of Kaplan,
which represents “the latest word” from this Court.
On plaintiffs’ petition we granted certification, to address the
correct standard for informed consent. We now discard Kaplan’s
“reasonable physician” standard and adopt instead the Canterbury
“reasonable patient” rule. Hence, we reverse and remand for a
new trial.
I
The narrow issue before us can be placed in satisfactory context
by our adopting in pertinent part the Appellate Division’s
recitation of the facts. In the quoted passage as well as
henceforth in this opinion, the word “plaintiff” refers to
plaintiff Janice Largey.
In the course of a routine physical examination
plaintiff’s gynecologist, Dr. Glassman, detected
a “vague mass” in her right breast. The doctor
arranged for mammograms to be taken. The
radiologist reported two anomalies to the
doctor: an “ill-defined density” in the subareola
region and an enlarged lymph node or nodes,
measuring four-by-two centimeters, in the right
axilla (armpit). The doctor referred plaintiff to

418

defendant, a surgeon. Defendant expressed
concern that the anomalies on the
mammograms
might
be
cancer
and
recommended a biopsy. There was a sharp
dispute at trial over whether he stated that the
biopsy would include the lymph nodes as well as
the breast tissue. Plaintiff claims that defendant
never mentioned the nodes.
Plaintiff submitted to the biopsy procedure after
receiving a confirmatory second opinion from a
Dr. Slattery. During the procedure defendant
removed a piece of the suspect mass from
plaintiff’s breast and excised the nodes. The
biopsies showed that both specimens were
benign. About six weeks after the operation,
plaintiff developed a right arm and hand
lymphedema, a swelling caused by inadequate
drainage in the lymphatic system. The condition
resulted from the excision of the lymph nodes.
Defendant did not advise plaintiff of this risk.
Plaintiff’s experts testified that defendant should
have informed plaintiff that lymphedema was a
risk of the operation. Defendant’s experts
testified that it was too rare to be discussed with
a patient.
Plaintiff and her husband, who sued per quod,
advanced two theories of liability * * *. They
claimed that they were never told that the
operation would include removal of the nodes
and therefore that procedure constituted an
unauthorized battery. Alternatively, they claimed
that even if they had authorized the node
excision, defendant was negligent in failing to
warn them of the risk of lymphedema and
therefore their consent was uninformed. The
jury specifically rejected both claims.
II
The origins of the requirement that a physician obtain the
patient’s consent before surgery may be traced back at least two
centuries. See Slater v. Baker & Stapleton, 95 Eng.Rep. 860

419

(K.B.1767). The doctrine is now well-embedded in our law. In
Schloendorff v. The Soc’y of the N.Y. Hosp., 211 N.Y. 125 (1914),
Justice Cardozo announced a patient’s right to be free of
uninvited, unknown surgery, which constitutes a trespass on the
patient: “Every human being of adult years and sound mind has
a right to determine what shall be done with his own body; and
a surgeon who performs an operation without his patient’s
consent commits an assault, for which he is liable in damages.”
Earlier case law recognized that theories of fraud and
misrepresentation would sustain a patient’s action in battery for
an unauthorized intervention. Although that cause of action
continues to be recognized in New Jersey, there is no “battery”
claim implicated in this appeal because the jury determined as a
matter of fact that plaintiff had given consent to the node
excision performed by Dr. Rothman.
Although the requirement that a patient give consent before the
physician can operate is of long standing, the doctrine of informed
consent is one of relatively recent development in our
jurisprudence. It is essentially a negligence concept, predicated
on the duty of a physician to disclose to a patient such
information as will enable the patient to make an evaluation of
the nature of the treatment and of any attendant substantial
risks, as well as of available options in the form of alternative
therapies.
An early statement of the “informed consent” rule is found in
Salgo v. Leland Stanford, Jr. Univ. Bd. of Trustees, 154 Cal.App.2d
560 (Dist.Ct.App.1957), in which the court declared that “[a]
physician violates his duty to his patient and subjects himself to
liability if he withholds any facts which are necessary to form the
basis of an intelligent consent by the patient to the proposed
treatment.” Salgo recognized that because each patient presents a
“special problem,” the physician has a certain amount of
discretion in dismissing the element of risk, “consistent, of
course, with the full disclosure of facts necessary to an informed
consent.”
Further development of the doctrine came shortly thereafter, in
Natanson v. Kline, 186 Kan. 393 (1960), which represented one of

420

the leading cases on informed consent at that time. In Natanson
a patient sustained injuries from excessive doses of radioactive
cobalt during radiation therapy. Even though the patient had
consented to the radiation treatment, she alleged that the
physician had not informed her of the nature and consequences
of the risks posed by the therapy. Thus, the case sounded in
negligence rather than battery. The court concluded that when a
physician either affirmatively misrepresents the nature of an
operation or fails to disclose the probable consequences of the
treatment, he may be subjected to a claim of unauthorized
treatment. The Natanson court established the standard of care
to be exercised by a physician in an informed consent case as
“limited to those disclosures which a reasonable medical
practitioner would make under the same or similar
circumstances.” At bottom the decision turned on the principle
of a patient’s right of self-determination:
Anglo-American law starts with the premise of
thorough self-determination. It follows that
each man is considered to be master of his own
body, and he may, if he be of sound mind,
expressly prohibit the performance of lifesaving surgery, or other medical treatment. A
doctor might well believe that an operation or
form of treatment is desirable or necessary but
the law does not permit him to substitute his
own judgment for that of the patient by any
form of artifice or deception.
After Salgo and Natanson the doctrine of informed consent came
to be adopted and developed in other jurisdictions, which, until
1972, followed the “traditional” or “professional” standard
formulation of the rule. Under that standard, as applied by the
majority of the jurisdictions that adopted it, a physician is
required to make such disclosure as comports with the
prevailing medical standard in the community – that is, the
disclosure of those risks that a reasonable physician in the
community, of like training, would customarily make in similar
circumstances. A minority of the jurisdictions that adhere to the
“professional” standard do not relate the test to any kind of

421

community standard but require only such disclosures as would
be made by a reasonable medical practitioner under similar
circumstances. In order to prevail in a case applying the
“traditional” or “professional” standard a plaintiff would have
to present expert testimony of the community’s medical
standard for disclosure in respect of the procedure in question
and of the defendant physician’s failure to have met that
standard.
In both the majority and minority formulations the
“professional” standard rests on the belief that a physician, and
only a physician, can effectively estimate both the psychological
and physical consequences that a risk inherent in a medical
procedure might produce in a patient. The burden imposed on
the physician under this standard is to “consider the state of the
patient’s health, and whether the risks involved are mere remote
possibilities or real hazards which occur with appreciable
regularity * * *.” A second basic justification offered in support
of the “professional” standard is that “a general standard of
care, as required under the prudent patient rule, would require a
physician to waste unnecessary time in reviewing with the
patient every possible risk, thereby interfering with the flexibility a
physician needs in deciding what form of treatment is best for
the patient.”
It was the “professional” standard that this Court accepted
when, twenty years ago, it made the doctrine of informed
consent a component part of our medical malpractice
jurisprudence. See Kaplan v. Haines. In falling into step with those
other jurisdictions that by then had adopted informed consent,
the Court approved the following from the Appellate Division’s
opinion in Kaplan:
The authorities * * * are in general agreement
that the nature and extent of the disclosure,
essential to an informed consent, depends upon
the medical problem as well as the patient.
Plaintiff has the burden to prove what a
reasonable medical practitioner of the same
school and same or similar community, under
the same or similar circumstances, would have

422

disclosed to his patient and the issue is one for
the jury where, as in the case sub judice, a fact
issue is raised upon conflicting testimony as to
whether the physician made an adequate
disclosure.
In 1972 a new standard of disclosure for “informed consent”
was established in Canterbury v. Spence. The case raised a question
of the defendant physician’s duty to warn the patient
beforehand of the risk involved in a laminectomy, a surgical
procedure the purpose of which was to relieve pain in plaintiff’s
lower back, and particularly the risk attendant on a myelogram,
the diagnostic procedure preceding the surgery. After several
surgical interventions and hospitalizations, plaintiff was still, at
the time of trial, using crutches to walk, suffering from urinary
incontinence and paralysis of the bowels, and wearing a penile
clamp.
The Canterbury court announced a duty on the part of a
physician to “warn of the dangers lurking in the proposed
treatment” and to “impart information [that] the patient has
every right to expect,” as well as a duty of “reasonable disclosure
of the choices with respect to proposed therapy and the dangers
inherently and potentially involved.” The court held that the
scope of the duty to disclose
must be measured by the patient’s need, and
that need is the information material to the
decision. Thus the test for determining whether
a particular peril must be divulged is its
materiality to the patient’s decision: all risks
potentially affecting the decision must be
unmasked. And to safeguard the patient’s
interest in achieving his own determination on
treatment, the law must itself set the standard
for adequate disclosure.
The breadth of the disclosure of the risks legally to be required
is measured, under Canterbury, by a standard whose scope is “not
subjective as to either the physician or the patient,”; rather, “it
remains objective with due regard for the patient’s informational
needs and with suitable leeway for the physician’s situation.” A

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risk would be deemed “material” when a reasonable patient, in
what the physician knows or should know to be the patient’s
position, would be “likely to attach significance to the risk or
cluster of risks” in deciding whether to forego the proposed
therapy or to submit to it.
The foregoing standard for adequate disclosure, known as the
“prudent patient” or “materiality of risk” standard, has been
adopted in a number of jurisdictions.
The jurisdictions that have rejected the “professional” standard
in favor of the “prudent patient” rule have given a number of
reasons in support of their preference. Those include:
(1) The existence of a discernible custom
reflecting a medical consensus is open to serious
doubt. The desirable scope of disclosure
depends on the given fact situation, which
varies from patient to patient, and should not be
subject to the whim of the medical community
in setting the standard.
(2) Since a physician in obtaining a patient’s
informed consent to proposed treatment is
often obligated to consider non-medical factors,
such as a patient’s emotional condition,
professional custom should not furnish the legal
criterion for measuring the physician’s
obligation to disclose. Whether a physician has
conformed to a professional standard should * *
* be important [only] where a pure medical
judgment is involved, e.g. in ordinary
malpractice actions, where the issue generally
concerns the quality of treatment provided to
the patient.
(3) Closely related to both (1) and (2) is the
notion that a professional standard is totally
subject to the whim of the physicians in the
particular community. Under this view a
physician is vested with virtually unlimited
discretion in establishing the proper scope of
disclosure; this is inconsistent with the patient’s
right of self-determination. As observed by the

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court in Canterbury v. Spence: “Respect for the
patient’s right of self-determination * * *
demands a standard set by law for physicians
rather than one which physicians may or may
not impose upon themselves.”
(4) The requirement that the patient present
expert testimony to establish the professional
standard has created problems for patients
trying to find physicians willing to breach the
“community of silence” by testifying against
fellow colleagues.
Taken together, the reasons supporting adoption of the
“prudent patient” standard persuade us that the time has come
for us to abandon so much of the decision by which this Court
embraced the doctrine of informed consent as accepts the
“professional” standard. To that extent Kaplan v. Haines is
overruled.
As indicated by the foregoing passages~, the policy
considerations are clear-cut. At the outset we are entirely
unimpressed with the argument, made by those favoring the
“professional” standard, that the “prudent patient” rule would
compel disclosure of every risk (not just material risks) to any
patient (rather than the reasonable patient). As Canterbury makes
clear,
[t]he topics importantly demanding a
communication of information are the inherent
and potential hazards of the proposed
treatment, the alternatives to that treatment, if
any, and the results likely if the patient remains
untreated. The factors contributing significance
to the dangerousness of a medical technique are,
of course, the incidence of injury and the degree
of harm threatened.
The court in Canterbury did not presume to draw a “bright line
separating the significant [risks] from the insignificant”; rather, it
resorted to a “rule of reason,” concluding that “[w]henever nondisclosure of particular risk information is open to debate by
reasonable-minded men, the issue is one for the finder of facts.”

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The point assumes significance in this case because defendant
argues that the risk of lymphedema from an axillary node biopsy
is remote, not material. Plaintiff’s experts disagree, contending
that she should have been informed of that risk. Thus there will
be presented on the retrial a factual issue for the jury’s
resolution: would the risk of lymphedema influence a prudent
patient in reaching a decision on whether to submit to the
surgery?
Perhaps the strongest consideration that influences our decision
in favor of the “prudent patient” standard lies in the notion that
the physician’s duty of disclosure “arises from phenomena apart
from medical custom and practice”: the patient’s right of selfdetermination. The foundation for the physician’s duty to
disclose in the first place is found in the idea that “it is the
prerogative of the patient, not the physician, to determine for
himself the direction in which his interests seem to lie.” In
contrast the arguments for the “professional” standard smack of
an anachronistic paternalism that is at odds with any strong
conception of a patient’s right of self-determination.
Although today’s decision marks the first time we have
confronted directly the choice between the “professional” and
“prudent patient” standards, and hence to that extent our stated
preference for the latter represents a clear break with the past,
surely the considerations that we have identified as having
played a significant role in that choice are familiar features of
our case law. For example, just two terms ago we declared that
“[t]he doctrine of informed consent presupposes that the patient
has the information necessary to evaluate the risks and benefits
of all the available options and is competent to do so.”
III
Finally, we address the issue of proximate cause. As with other
medical malpractice actions, informed-consent cases require that
plaintiff prove not only that the physician failed to comply with
the applicable standard for disclosure but also that such failure
was the proximate cause of plaintiff’s injuries.

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Under the “prudent patient” standard “causation must also be
shown: i.e., that the prudent person in the patient’s position
would have decided differently if adequately informed.” As
Canterbury observes,
[t]he patient obviously has no complaint if he
would have submitted to the therapy
notwithstanding awareness that the risk was one
of its perils. On the other hand, the very
purpose of the disclosure rule is to protect the
patient against consequences which, if known,
he would have avoided by foregoing the
treatment. The more difficult question is
whether the factual issue on causality calls for
an objective or a subjective determination.
Canterbury decided its own question in favor of an objective
determination. The subjective approach, which the court
rejected, inquires whether, if the patient had been informed of
the risks that in fact materialized, he or she would have
consented to the treatment. The shortcoming of this approach,
according to Canterbury, is that it
places the physician in jeopardy of the patient’s
hindsight and bitterness. It places the factfinder
in the position of deciding whether a speculative
answer to a hypothetical question is to be
credited. It calls for a subjective determination
solely on testimony of a patient-witness
shadowed by the occurrence of the undisclosed
risk.
The court therefore elected to adopt an objective test, as do we.
Because we would not presume to attempt an improvement in
its articulation of the reasons, we quote once again the Canterbury
court:
Better it is, we believe, to resolve the causality
issue on an objective basis: in terms of what a
prudent person in the patient’s position would
have decided if suitably informed of all perils
bearing significance. If adequate disclosure
could reasonably be expected to have caused

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that person to decline the treatment because of
the revelation of the kind of risk or danger that
resulted in harm, causation is shown, but
otherwise not. The patient’s testimony is
relevant on that score of course but it would not
threaten to dominate the findings. And since
that testimony would probably be appraised
congruently with the factfinder’s belief in its
reasonableness, the case for a wholly objective
standard for passing on causation is
strengthened. Such a standard would in any
event ease the fact-finding process and better
assure the truth as its product.
IV
The judgment of the Appellate Division is reversed. The cause is
remanded for a new trial consistent with this opinion.

Questions to Ponder About Largey
A. Which is better, the physician rule (a/k/a the “‘professional
standard’ rule”) or the patient rule (a/k/a the “‘prudent patient’
rule”)? Why?
B. Assuming that a jurisdiction opts for the patient rule, do you agree
with the Largey court that the causation standard should be objective?
Or should it be subjective? Stated differently, should the plaintiff
have a cause of action if the hypothetical prudent patient would have
made a different decision had the risk been disclosed? (The objective
causation standard.) Or should it only matter whether the particular
plaintiff would have made a different decision had the risk been
disclosed? (The subjective causation standard.)

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12. ERISA Preemption
“A rule without a penalty is just a suggestion.”
– Unknown

Basics
The Employee Retirement Income Security Act of 1974 – known as
“ERISA” – is a federal statute regulating employee benefits. ERISA
is important in the negligence context because of its preemptive
effect.
Federal laws can trump state laws – an effect called “preemption” –
because of the Supremacy Clause of the U.S. Constitution in Article
VI, Clause 2. It provides:
“This Constitution, and the Laws of the United
States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be
made, under the Authority of the United States,
shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.”

This power allows federal statutes to erase state causes of action. As
you know, tort law is a matter of state law.
The ERISA preemption provision is found in the federal statutes at
29 U.S.C. § 1144, but it is better known by its native section number
as ERISA § 514. The statute provides:
“[T]he provisions of this subchapter and
subchapter III of this chapter shall supersede
any and all State laws insofar as they may now
or hereafter relate to any employee benefit
plan[.]”

This provision has been interpreted to bar tort lawsuits stemming
from wrongfully withheld benefits. So if an employee is entitled to
medical care under the employer’s health plan, and that medical care
is wrongfully denied, a common-law contract or tort lawsuit will not

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be allowed. This has the effect of providing a substantial level of
immunity for healthcare decisions made in the context of employeebenefit program. The ERISA preemption effect is especially sharply
felt in the context of decisions made by health maintenance
organizations (HMOs).
Although state-law causes of action are not available to employees
wrongfully denied benefits, ERISA itself provides a cause of action.
ERISA § 502 creates a special private right of action such that
employees wrongfully denied benefits can sue to recover the value of
the benefits. The crucial difference between ERISA § 502 and
common-law causes of action lies in the amount recoverable. ERISA
§ 502 does not permit recovery for consequential damages or
punitive damages. So if a person dies because of being wrongfully
denied coverage for needed treatment under an employee-benefit
plan, the recovery is limited to the monetary amount that should have
been disbursed for the treatment. The family may not recover an
amount that would compensate them for the loss of their loved one.
Critics charge that this gives insurers and HMOs little incentive to
pay the benefits that insureds are legally due. If a health-care
organization is confronted with an authorization request for a lifesaving surgery that will cost $75,000, the organization can authorize
the surgery, in which case it will be out $75,000, or the organization
can withhold authorization, in which case it faces a potential liability
– assuming a § 502 action is brought – of $75,000. This means that
health-care organizations have little to lose by withholding treatment
authorizations. Of course, if a health-care organization is chronically
uncooperative, it can expect to lose customers. Since, however, the
health-care organizations’ true customer is the employer – not the
covered employees – the organization may find that it wins more
business by keeping costs low rather than through excellent service.
It is important to keep in mind what causes of action ERISA does
not bar.
ERISA does not bar state tort law suits against health-insurers or
HMOs that are not providing services as part of an employee benefit
program. The vast majority of people with health insurance get that

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insurance through an employee-benefit program. But where an
individual contracts directly with a health-care insurer, ERISA does
not apply. This point is particularly important, since the number of
individuals getting insurance outside the employment context is
increasing because of “Obamacare” – the Patient Protection and
Affordable Care Act of 2010.
Moreover, ERISA does not bar suits against physicians who commit
malpractice. Similarly, ERISA does not bar medical negligence
lawsuits against hospitals. This is true even when the physicians’ bills
and hospital bills are being paid by an employee-benefit plan.
Moreover, courts have often allowed suits against HMOs where the
physician is directly employed by the HMO and where the basis of
the claim is one of vicarious liability for employing the malpracticecommitting physician.

Case: Corcoran v. United Healthcare
The following leading case shows the power of ERISA preemption in
action and indicates the extent of its effect on common-law torts.

Corcoran v. United Healthcare
United States Court of Appeals for the Fifth Circuit
June 26, 1992
965 F.2d 1321. FLORENCE B. CORCORAN Wife of/and
WAYNE D. CORCORAN, Plaintiffs-Appellants, v. UNITED
HEALTHCARE, INC., and BLUE CROSS and BLUE
SHIELD OF ALABAMA, INC., Defendants-Appellees. No.
91-3322. THORNBERRY, KING, and DeMOSS, Circuit
Judges.
Judge CAROLYN DINEEN KING:
This appeal requires us to decide whether ERISA pre-empts a
state-law malpractice action brought by the beneficiary of an
ERISA plan against a company that provides “utilization
review” services to the plan. We also address the availability
under ERISA of extracontractual damages. The district court
granted the defendants’ motion for summary judgment, holding
that ERISA both pre-empted the plaintiffs’ medical malpractice

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claim and precluded them from recovering emotional distress
damages. We affirm.
I. BACKGROUND
The basic facts are undisputed. Florence Corcoran, a long-time
employee of South Central Bell Telephone Company (Bell),
became pregnant in early 1989. In July, her obstetrician, Dr.
Jason Collins, recommended that she have complete bed rest
during the final months of her pregnancy. Mrs. Corcoran
applied to Bell for temporary disability benefits for the
remainder of her pregnancy, but the benefits were denied. This
prompted Dr. Collins to write to Dr. Theodore J. Borgman,
medical consultant for Bell, and explain that Mrs. Corcoran had
several medical problems which placed her “in a category of
high risk pregnancy.” Bell again denied disability benefits.
Unbeknownst to Mrs. Corcoran or Dr. Collins, Dr. Borgman
solicited a second opinion on Mrs. Corcoran’s condition from
another obstetrician, Dr. Simon Ward. In a letter to Dr.
Borgman, Dr. Ward indicated that he had reviewed Mrs.
Corcoran’s medical records and suggested that “the company
would be at considerable risk denying her doctor’s
recommendation.” As Mrs. Corcoran neared her delivery date,
Dr. Collins ordered her hospitalized so that he could monitor
the fetus around the clock. This was the same course of action
Dr. Collins had ordered during Mrs. Corcoran’s 1988 pregnancy.
In that pregnancy, Dr. Collins intervened and performed a
successful Caesarean section in the 36th week when the fetus
went into distress.
Mrs. Corcoran was a member of Bell’s Medical Assistance Plan
(MAP or “the Plan”). MAP is a self-funded welfare benefit plan
which provides medical benefits to eligible Bell employees. It is
administered by defendant Blue Cross and Blue Shield of
Alabama (Blue Cross) pursuant to an Administrative Services
Agreement between Bell and Blue Cross. The parties agree that
it is governed by ERISA Employee Retirement Income
Security Act of 1974, Pub. L. No. 93-406, 88 Stat. 829, 29 U.S.C.
§§ 1001-1461.

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Under a portion of the Plan known as the “Quality Care
Program” (QCP), participants must obtain advance approval for
overnight hospital admissions and certain medical procedures
(“pre-certification”), and must obtain approval on a continuing
basis once they are admitted to a hospital (“concurrent review”),
or plan benefits to which they otherwise would be entitled are
reduced.
QCP is administered by defendant United HealthCare (United)
pursuant to an agreement with Bell. United performs a form of
cost-containment service that has commonly become known as
“utilization review.” See Blum, An Analysis of Legal Liability in
Health Care Utilization Review and Case Management, 26 Hous. L.
Rev. 191, 192-93 (1989) (Utilization review refers to “external
evaluations that are based on established clinical criteria and are
conducted by third-party payors, purchasers, or health care
organizers to evaluate the appropriateness of an episode, or
series of episodes, of medical care.”). The Summary Plan
Description (SPD) explains QCP as follows:
The Quality Care Program (QCP), administered
by United HealthCare, Inc., assists you and your
covered dependents in securing quality medical
care according to the provisions of the Plan
while helping reduce risk and expense due to
unnecessary hospitalization and surgery. They
do this by providing you with information
which will permit you (in consultation with your
doctor) to evaluate alternatives to surgery and
hospitalization when those alternatives are
medically appropriate. In addition, QCP will
monitor any certified hospital confinement to
keep you informed as to whether or not the stay
is covered by the Plan.
Two paragraphs below, the SPD contains this statement: When
reading this booklet, remember that all decisions regarding
your medical care are up to you and your doctor. It goes on
to explain that when a beneficiary does not contact United or
follow its pre-certification decision, a “QCP Penalty” is applied.
The penalty involves reduction of benefits by 20 percent for the

433

remainder of the calendar year or until the annual out-of-pocket
limit is reached. Moreover, the annual out-of-pocket limit is
increased from $ 1,000 to $ 1,250 in covered expenses, not
including any applicable deductible. According to the QCP
Administrative Manual, the QCP penalty is automatically applied
when a participant fails to contact United. However, if a
participant complies with QCP by contacting United, but does
not follow its decision, the penalty may be waived following an
internal appeal if the medical facts show that the treatment
chosen was appropriate.
A more complete description of QCP and the services provided
by United is contained in a separate booklet. Under the heading
“WHAT QCP DOES” the booklet explains:
Whenever your doctor recommends surgery or
hospitalization for you or a covered dependent,
QCP will provide an independent review of
your condition (or your covered dependent’s).
The purpose of the review is to assess the need
for surgery or hospitalization and to determine
the appropriate length of stay for a
hospitalization, based on nationally accepted
medical guidelines. As part of the review
process, QCP will discuss with your doctor the
appropriateness
of
the
treatments
recommended and the availability of alternative
types of treatments – or locations for treatment
– that are equally effective, involve less risk, and
are more cost effective.
The next paragraph is headed “INDEPENDENT,
PROFESSIONAL REVIEW” and states:
United Health Care, an independent
professional medical review organization, has
been engaged to provide services under QCP.
United’s staff includes doctors, nurses, and
other medical professionals knowledgeable
about the health care delivery system. Together
with your doctor, they work to assure that you
and your covered family members receive the
most appropriate medical care.

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At several points in the booklet, the themes of “independent
medical review” and “reduction of unnecessary risk and
expense” are repeated. Under a section entitled “THE
QUALITY CARE PROGRAM … AT A GLANCE” the
booklet states that QCP “Provides independent, professional
review when surgery or hospitalization is recommended – to
assist you in making an enlightened decision regarding your
treatment.” QCP “[p]rovides improved quality of care by
eliminating medically unnecessary treatment,” but beneficiaries
who fail to use it “may be exposed to unnecessary health risks.
…” Elsewhere, in the course of pointing out that studies show
one-third of all surgery may be unnecessary, the booklet explains
that programs such as QCP “help reduce unnecessary and
inappropriate care and eliminate their associated costs.” Thus,
“one important service of QCP will help you get a second
opinion when your doctor recommends surgery.”
The booklet goes on to describe the circumstances under which
QCP must be utilized. When a Plan member’s doctor
recommends admission to the hospital, independent medical
professionals will review, with the patient’s doctor, the medical
findings and the proposed course of treatment, including the
medically necessary length of confinement. The Quality Care
Program may require additional tests or information (including
second opinions), when determined necessary during
consultation between QCP professionals and the attending
physician.
When United certifies a hospital stay, it monitors the continuing
necessity of the stay. It also determines, for certain medical
procedures and surgeries, whether a second opinion is
necessary, and authorizes, where appropriate, certain alternative
forms of care. Beneficiaries are strongly encouraged to use QCP
to avoid loss of benefits: “‘fully using’ QCP means following the
course of treatment that’s recommended by QCP’s medical
professionals.”
In accordance with the QCP portion of the plan, Dr. Collins
sought pre-certification from United for Mrs. Corcoran’s
hospital stay. Despite Dr. Collins’s recommendation, United

435

determined that hospitalization was not necessary, and instead
authorized 10 hours per day of home nursing care.
Mrs. Corcoran entered the hospital on October 3, 1989, but,
because United had not pre-certified her stay, she returned
home on October 12. On October 25, during a period of time
when no nurse was on duty, the fetus went into distress and
died.
Mrs. Corcoran and her husband, Wayne, filed a wrongful death
action in Louisiana state court alleging that their unborn child
died as a result of various acts of negligence committed by Blue
Cross and United. Both sought damages for the lost love,
society and affection of their unborn child. In addition, Mrs.
Corcoran sought damages for the aggravation of a pre-existing
depressive condition and the loss of consortium caused by such
aggravation, and Mr. Corcoran sought damages for loss of
consortium. The defendants removed the action to federal court
on grounds that it was pre-empted by ERISA and that there was
complete diversity among the parties. See Metropolitan Life Ins.
Co. v. Taylor, 481 U.S. 58, 66 (1987) (because ERISA preemption is so comprehensive, pre-emption defense provides
sufficient basis for removal to federal court notwithstanding
“well-pleaded complaint” rule).
Shortly thereafter, the defendants moved for summary
judgment. They argued that the Corcorans’ cause of action,
properly characterized, sought damages for improper handling
of a claim from two entities whose responsibilities were simply
to administer benefits under an ERISA-governed plan. They
contended that their relationship to Mrs. Corcoran came into
existence solely as a result of an ERISA plan and was defined
entirely by the plan. Thus, they urged the court to view the
claims as “relating to” an ERISA plan, and therefore within the
broad scope of state law claims pre-empted by the statute. In
their opposition to the motion, the Corcorans argued that “this
case essentially boils down to one for malpractice against United
HealthCare. … ” They contended that under this court’s analysis
in Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan
Enterprises, Inc., 793 F.2d 1456 (5th Cir. 1986), their cause of

436

action must be classified as a state law of general application
which involves an exercise of traditional state authority and
affects principal ERISA entities in their individual capacities.
This classification, they argued, together with the fact that preemption would contravene the purposes of ERISA by leaving
them without a remedy, leads to the conclusion that the action is
permissible notwithstanding ERISA.
The district court, relying on the broad ERISA pre-emption
principles developed by the Supreme Court and the Fifth
Circuit, granted the motion. The court noted that ERISA preemption extends to state law claims “‘of general application,’
including tort claims where ERISA ordinarily plays no role in
the state law at issue.” The court found that the state law claim
advanced by the Corcorans “related to” the employee benefit
plan (citing the statutory pre-emption clause, ERISA § 514(a)),
and therefore was pre-empted, because
but for the ERISA plan, the defendants would
have played no role in Mrs. Corcoran’s
pregnancy; the sole reason the defendants had
anything to do with her pregnancy is because
the terms of the ERISA plan directed Mrs.
Corcoran to the defendants (or at least to
United HealthCare) for approval of coverage of
the medical care she initially sought.
The court held that, because the ERISA plan was the source of
the relationship between the Corcorans and the defendants, the
Corcorans’ attempt to distinguish United’s role in paying claims
from its role as a source of professional medical advice was
unconvincing.
The Corcorans filed a motion for reconsideration under Rule 59
of the Federal Rules of Civil Procedure. They did not ask the
district court to reconsider its pre-emption ruling, but instead
contended that language in the district court’s opinion had
implicitly recognized that they had a separate cause of action
under ERISA’s civil enforcement mechanism, § 502(a)(3). The
district court had stated that “because the plaintiffs concede that
the defendants have fully paid any and all medical expenses that

437

Mrs. Corcoran actually incurred that were covered by the plan,
the plaintiffs have no remaining claims under ERISA.” In a
footnote, the court indicated that Mrs. Corcoran could have (1)
sued under ERISA, before entering the hospital, for a
declaratory judgment that she was entitled to hospitalization
benefits; or (2) gone into the hospital, incurred out-of-pocket
expenses, and sued under ERISA for these expenses. They
argued that the Supreme Court’s decision in Massachusetts Mutual
Life Ins. Co. v. Russell, 473 U.S. 134 (1985), did not foreclose the
possibility that compensatory damages such as they sought
constituted “other appropriate equitable relief” available under §
502(a)(3) for violations of ERISA or the terms of an ERISA
plan. The district court denied the motion. Although the court
recognized that there was authority to the contrary, it pointed
out that “the vast majority of federal appellate courts have …
held that a beneficiary under an ERISA health plan may not
recover under section 509(a)(3) [sic] of ERISA compensatory or
consequential damages for emotional distress or other claims
beyond medical expenses covered by the plan.” (citations
omitted). Moreover, the court pointed out, a prerequisite to
recovery under § 502(a)(3) is a violation of the terms of ERISA
itself. ERISA does not place upon the defendants a substantive
responsibility in connection with the provision of medical advice
which, if breached, would support a claim under § 502(a)(3).
The court entered final judgment in favor of Blue Cross and
United, and this appeal followed.
II. STANDARD OF REVIEW
Because this case is on appeal from the district court’s grant of
summary judgment, our review is plenary. We view the evidence
in the light most favorable to the nonmoving party~.
III. PRE-EMPTION OF THE STATE LAW CAUSE OF
ACTION
A. The Nature of the Corcorans’ State Law Claims
The Corcorans’ original petition in state court alleged that acts
of negligence committed by Blue Cross and United caused the
death of their unborn child. Specifically, they alleged that Blue

438

Cross wrongfully denied appropriate medical care, failed
adequately to oversee the medical decisions of United, and failed
to provide United with Mrs. Corcoran’s complete medical
background. They alleged that United wrongfully denied the
medical care recommended by Dr. Collins and wrongfully
determined that home nursing care was adequate for her
condition. It is evident that the Corcorans no longer pursue any
theory of recovery against Blue Cross~, they challenge only the
district court’s conclusion that ERISA pre-empts their state law
cause of action against United.~
The claims against United arise from a relatively recent
phenomenon in the health care delivery system – the
prospective review by a third party of the necessity of medical
care. Systems of prospective and concurrent review, rather than
traditional retrospective review, were widely adopted throughout
the 1980s as a method of containing the rapidly rising costs of
health care. Blum, supra, at 192; Furrow, Medical Malpractice and
Cost Containment: Tightening the Screws, 36 Case Western L. Rev.
985, 986-87 (1986). Under the traditional retrospective system
(also commonly known as the fee-for-service system), the
patient obtained medical treatment and the insurer reviewed the
provider’s claims for payment to determine whether they were
covered under the plan. Denial of a claim meant that the cost of
treatment was absorbed by an entity other than the one designed
to spread the risk of medical costs – the insurer.
Congress’s adoption in 1983 of a system under which hospitals
are reimbursed for services provided to Medicare patients based
upon average cost calculations for patients with particular
diagnoses spurred private insurers to institute similar programs
in which prospective decisions are made about the appropriate
level of care. Although plans vary, the typical prospective review
system requires some form of pre-admission certification by a
third party (e.g., the HMO if an HMO-associated doctor
provides care; an outside organization such as United if an
independent physician provides care) before a hospital stay.
Concurrent review involves the monitoring of a hospital stay to
determine its continuing appropriateness. See generally, Blum,
supra, at 192-93; Tiano, The Legal Implications of HMO Cost

439

Containment Measures, 14 Seton Hall Legis. J. 79, 80 (1990). As the
SPD makes clear, United performs this sort of prospective and
concurrent review (generically, “utilization review”) in
connection with, inter alia, the hospitalization of Bell employees.
The Corcorans based their action against United on Article 2315
of the Louisiana Civil Code, which provides that “every act
whatever of man that causes damage to another obliges him by
whose fault it happened to repair it.” Article 2315 provides
parents with a cause of action for the wrongful death of their
unborn children, and also places liability on health care
providers when they fail to live up to the applicable standard of
care.~
B. Principles of ERISA Pre-emption
The central inquiry in determining whether a federal statute preempts state law is the intent of Congress. In performing this
analysis we begin with any statutory language that expresses an
intent to pre-empt, but we look also to the purpose and
structure of the statute as a whole.
ERISA contains an explicit pre-emption clause, which provides,
in relevant part:
Except as provided in subsection (b) of this
section, the provisions of this subchapter and
subchapter III of this chapter shall supersede
any and all State laws insofar as they may now
or hereafter relate to any employee benefit plan
described in section 1003(a). …
ERISA § 514(a). It is by now well-established that the
“deliberately expansive” language of this clause, Pilot Life Ins. Co.
v. Dedeaux, 481 U.S. 41, 46 (1987), is a signal that it is be
construed extremely broadly. See FMC Corp., (“the pre-emption
clause is conspicuous for its breadth”). The key words “relate
to” are used in such a way as to expand pre-emption beyond
state laws that relate to the specific subjects covered by ERISA,
such as reporting, disclosure and fiduciary obligations. Thus,
state laws “relate[] to” employee benefit plans in a much broader
sense – whenever they have “a connection with or reference to

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such a plan.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97
(1983). This sweeping pre-emption of state law is consistent
with Congress’s decision to create a comprehensive, uniform
federal scheme for the regulation of employee benefit plans.
The most obvious class of pre-empted state laws are those that
are specifically designed to affect ERISA-governed employee
benefit plans. But a law is not saved from pre-emption merely
because it does not target employee benefit plans. Indeed, much
pre-emption litigation involves laws of general application
which, when applied in particular settings, can be said to have a
connection with or a reference to an ERISA plan. See Pilot Life,
481 U.S. at 47-48 (common law tort and contract causes of
action seeking damages for improper processing of a claim for
benefits under a disability plan are pre-empted); Shaw, 463 U.S.
at 95-100 (statute interpreted by state court as prohibiting plans
from discriminating on the basis of pregnancy is pre-empted);
Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1218 (5th Cir. 1992)
(common law fraud and negligent misrepresentation claims that
allege reliance on agreements or representations about the
coverage of a plan are pre-empted). On the other hand, the
Court has recognized that not every conceivable cause of action
that may be brought against an ERISA-covered plan is preempted. “Some state actions may affect employee benefit plans
in too tenuous, remote or peripheral a manner to warrant a
finding that the law ‘relates to’ the plan.” Thus, “run-of-the-mill
state-law claims such as unpaid rent, failure to pay creditors, or
even torts committed by an ERISA plan” are not pre-empted.
C. Pre-emption of the Corcorans’ Claims
Initially, we observe that the common law causes of action
advanced by the Corcorans are not that species of law
“specifically designed” to affect ERISA plans, for the liability
rules they seek to invoke neither make explicit reference to nor
are premised on the existence of an ERISA plan. Rather, applied
in this case against a defendant that provides benefit-related
services to an ERISA plan, the generally applicable negligencebased causes of action may have an effect on an ERISA-

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governed plan. In our view, the pre-emption question devolves
into an assessment of the significance of these effects.
1. United’s position – it makes benefit determinations, not
medical decisions
United’s argument in favor of pre-emption is grounded in the
notion that the decision it made concerning Mrs. Corcoran was
not primarily a medical decision, but instead was a decision
made in its capacity as a plan fiduciary about what benefits were
authorized under the Plan. All it did, it argues, was determine
whether Mrs. Corcoran qualified for the benefits provided by
the plan by applying previously established eligibility criteria.
The argument’s coup de grace is that under well-established
precedent, participants may not sue in tort to redress injuries
flowing from decisions about what benefits are to be paid under
a plan. One commentator has endorsed this view of lawsuits
against providers of utilization review services, arguing that,
because medical services are the “benefits” provided by a
utilization review company, complaints about the quality of
medical services (i.e., lawsuits for negligence) “can therefore be
characterized as claims founded upon a constructive denial of
plan benefits.” Chittenden, Malpractice Liability and Managed
Health Care: History & Prognosis, 26 Tort & Ins. Law J. 451, 489
(1991).
In support of its argument, United points to its explanatory
booklet and its language stating that the company advises the
patient’s doctor “what the medical plan will pay for, based on a
review of [the patient’s] clinical information and nationally
accepted medical guidelines for the treatment of [the patient’s]
condition.” It also relies on statements to the effect that the
ultimate medical decisions are up to the beneficiary’s doctor. It
acknowledges at various points that its decision about what
benefits would be paid was based on a consideration of medical
information, but the thrust of the argument is that it was simply
performing commonplace administrative duties akin to claims
handling.
Because it was merely performing claims handling functions
when it rejected Dr. Collins’s request to approve Mrs.

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Corcoran’s hospitalization, United contends, the principles of
Pilot Life and its progeny squarely foreclose this lawsuit. In Pilot
Life, a beneficiary sought damages under various state-law tort
and contract theories from the insurance company that
determined eligibility for the employer’s long term disability
benefit plan. The company had paid benefits for two years, but
there followed a period during which the company terminated
and reinstated the beneficiary several times. The Court made
clear, however, that ERISA pre-empts state-law tort and
contract actions in which a beneficiary seeks to recover damages
for improper processing of a claim for benefits. United suggests
that its actions here were analogous to those of the insurance
company in Pilot Life, and therefore urges us to apply that
decision.
2. The Corcorans’ position – United makes medical decisions,
not benefit determinations
The Corcorans assert that Pilot Life and its progeny are
inapposite because they are not advancing a claim for improper
processing of benefits. Rather, they say, they seek to recover
solely for United’s erroneous medical decision that Mrs.
Corcoran did not require hospitalization during the last month
of her pregnancy. This argument, of course, depends on viewing
United’s action in this case as a medical decision, and not merely
an administrative determination about benefit entitlements.
Accordingly, the Corcorans, pointing to the statements United
makes in the QCP booklet concerning its medical expertise,
contend that United exercised medical judgment which is
outside the purview of ERISA pre-emption.
The Corcorans suggest that a medical negligence claim is
permitted under the analytical framework we have developed for
assessing pre-emption claims. Relying on Sommers Drug Stores Co.
Employee Profit Sharing Trust v. Corrigan Enterprises, Inc., 793 F.2d
1456 (5th Cir. 1986), they contend that we should not find the
state law under which they proceed pre-empted because it (1)
involves the exercise of traditional state authority and (2) is a law
of general application which, although it affects relations

443

between principal ERISA entities in this case, is not designed to
affect the ERISA relationship.
3. Our view – United makes medical decisions incident to
benefit determinations
We cannot fully agree with either United or the Corcorans.
Ultimately, we conclude that United makes medical decisions –
indeed, United gives medical advice – but it does so in the
context of making a determination about the availability of
benefits under the plan. Accordingly, we hold that the Louisiana
tort action asserted by the Corcorans for the wrongful death of
their child allegedly resulting from United’s erroneous medical
decision is pre-empted by ERISA.
Turning first to the question of the characterization of United’s
actions, we note that the QCP booklet and the SPD lend
substantial support to the Corcorans’ argument that United
makes medical decisions. United’s own booklet tells
beneficiaries that it “assesses the need for surgery or
hospitalization and … determines the appropriate length of stay
for a hospitalization, based on nationally accepted medical
guidelines.” United “will discuss with your doctor the
appropriateness of the treatments recommended and the
availability of alternative types of treatments.” Further,
“United’s staff includes doctors, nurses, and other medical
professionals knowledgeable about the health care delivery
system. Together with your doctor, they work to assure that you
and your covered family members receive the most appropriate
medical care.” According to the SPD, United will “provide you
with information which will permit you (in consultation with
your doctor) to evaluate alternatives to surgery and
hospitalization when those alternatives are medically
appropriate.”
United makes much of the disclaimer that decisions about
medical care are up to the beneficiary and his or her doctor.
While that may be so, and while the disclaimer may support the
conclusion that the relationship between United and the
beneficiary is not that of doctor-patient, it does not mean that
United does not make medical decisions or dispense medical

444

advice. See Wickline, 239 Cal. Rptr. at 819 (declining to hold
Medi-Cal liable but recognizing that it made a medical
judgment); Macaulay, Health Care Cost Containment and Medical
Malpractice: On a Collision Course, 19 Suffolk U.L. Rev. 91, 106-07
(1986) (“As illustrated in [Wickline], an adverse prospective
determination on the ‘necessity’ of medical treatment may
involve complex medical judgment.”) (footnote omitted). In
response, United argues that any such medical determination or
advice is made or given in the context of administering the
benefits available under the Bell plan. Supporting United’s
position is the contract between United and Bell, which
provides that “[United] shall contact the Participant’s physician
and based upon the medical evidence and normative data
determine whether the Participant should be eligible to receive
full plan benefits for the recommended hospitalization and the
duration of benefits.”
United argues that the decision it makes in this, the prospective
context, is no different than the decision an insurer makes in the
traditional retrospective context. The question in each case is
“what the medical plan will pay for, based on a review of [the
beneficiary’s] clinical information and nationally accepted
medical guidelines for the treatment of [the beneficiary’s]
condition.” See QCP Booklet at 4. A prospective decision is,
however, different in its impact on the beneficiary than a
retrospective decision. In both systems, the beneficiary
theoretically knows in advance what treatments the plan will pay
for because coverage is spelled out in the plan documents. But
in the retrospective system, a beneficiary who embarks on the
course of treatment recommended by his or her physician has
only a potential risk of disallowance of all or a part of the cost of
that treatment, and then only after treatment has been rendered.
In contrast, in a prospective system a beneficiary may be
squarely presented in advance of treatment with a statement that
the insurer will not pay for the proposed course of treatment
recommended by his or her doctor and the beneficiary has the
potential of recovering the cost of that treatment only if he or
she can prevail in a challenge to the insurer’s decision. A
beneficiary in the latter system would likely be far less inclined

445

to undertake the course of treatment that the insurer has at least
preliminarily rejected.
By its very nature, a system of prospective decisionmaking
influences the beneficiary’s choice among treatment options to a
far greater degree than does the theoretical risk of disallowance
of a claim facing a beneficiary in a retrospective system. Indeed,
the perception among insurers that prospective determinations
result in lower health care costs is premised on the likelihood
that a beneficiary, faced with the knowledge of specifically what
the plan will and will not pay for, will choose the treatment
option recommended by the plan in order to avoid risking total
or partial disallowance of benefits. When United makes a
decision pursuant, QCP, it is making a medical recommendation
which – because of the financial ramifications – is more likely to
be followed.~
Although we disagree with United’s position that no part of its
actions involves medical decisions, we cannot agree with the
Corcorans that no part of United’s actions involves benefit
determinations. In our view, United makes medical decisions as
part and parcel of its mandate to decide what benefits are
available under the Bell plan. As the QCP Booklet concisely
puts it, United decides “what the medical plan will pay for.”
When United’s actions are viewed from this perspective, it
becomes apparent that the Corcorans are attempting to recover
for a tort allegedly committed in the course of handling a benefit
determination. The nature of the benefit determination is
different than the type of decision that was at issue in Pilot Life,
but it is a benefit determination nonetheless. The principle of
Pilot Life that ERISA pre-empts state-law claims alleging
improper handling of benefit claims is broad enough to cover
the cause of action asserted here.
Moreover, allowing the Corcorans’ suit to go forward would
contravene Congress’s goals of “ensuring that plans and plan
sponsors would be subject to a uniform body of benefit law”
and “minimizing the administrative and financial burdens of
complying with conflicting directives among States or between
States and the Federal Government.” Thus, statutes that subject

446

plans to inconsistent regulatory schemes in different states,
thereby increasing inefficiency and potentially causing the plan
to respond by reducing benefit levels, are consistently held preempted.~
[A]lthough imposing liability on United might have the salutary
effect of deterring poor quality medical decisions, there is a
significant risk that state liability rules would be applied
differently to the conduct of utilization review companies in
different states. The cost of complying with varying substantive
standards would increase the cost of providing utilization review
services, thereby increasing the cost to health benefit plans of
including cost containment features such as the Quality Care
Program (or causing them to eliminate this sort of cost
containment program altogether) and ultimately decreasing the
pool of plan funds available to reimburse participants. See
Macaulay, supra, at 105.
~The acknowledged absence of a remedy under ERISA’s civil

enforcement scheme for medical malpractice committed in
connection with a plan benefit determination does not alter our
conclusion. While we are not unmindful of the fact that our
interpretation of the pre-emption clause leaves a gap in remedies
within a statute intended to protect participants in employee
benefit plans, the lack of an ERISA remedy does not affect a
pre-emption analysis. Congress perhaps could not have
predicted the interjection into the ERISA “system” of the
medical utilization review process, but it enacted a pre-emption
clause so broad and a statute so comprehensive that it would be
incompatible with the language, structure and purpose of the
statute to allow tort suits against entities so integrally connected
with a plan.
***
The result ERISA compels us to reach means that the
Corcorans have no remedy, state or federal, for what may have
been a serious mistake. This is troubling for several reasons.
First, it eliminates an important check on the thousands of
medical decisions routinely made in the burgeoning utilization
review system. With liability rules generally inapplicable, there is

447

theoretically less deterrence of substandard medical
decisionmaking. Moreover, if the cost of compliance with a
standard of care (reflected either in the cost of prevention or the
cost of paying judgments) need not be factored into utilization
review companies’ cost of doing business, bad medical
judgments will end up being cost-free to the plans that rely on
these companies to contain medical costs. ERISA plans, in turn,
will have one less incentive to seek out the companies that can
deliver both high quality services and reasonable prices.
Second, in any plan benefit determination, there is always some
tension between the interest of the beneficiary in obtaining
quality medical care and the interest of the plan in preserving the
pool of funds available to compensate all beneficiaries. In a
prospective review context, with its greatly increased ability to
deter the beneficiary (correctly or not) from embarking on a
course of treatment recommended by the beneficiary’s
physician, the tension between interest of the beneficiary and
that of the plan is exacerbated. A system which would, at least in
some circumstances, compensate the beneficiary who changes
course based upon a wrong call for the costs of that call might
ease the tension between the conflicting interests of the
beneficiary and the plan.
Finally, cost containment features such as the one at issue in this
case did not exist when Congress passed ERISA. While we are
confident that the result we have reached is faithful to
Congress’s intent neither to allow state-law causes of action that
relate to employee benefit plans nor to provide beneficiaries in
the Corcorans’ position with a remedy under ERISA, the world
of employee benefit plans has hardly remained static since 1974.
Fundamental changes such as the widespread institution of
utilization review would seem to warrant a reevaluation of
ERISA so that it can continue to serve its noble purpose of
safeguarding the interests of employees. Our system, of course,
allocates this task to Congress, not the courts, and we
acknowledge our role today by interpreting ERISA in a manner
consistent with the expressed intentions of its creators.

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Questions to Ponder About Corcoran
A. Do you agree that the language of the ERISA statute requires the
preemption of medical malpractice suits of the kind brought in the
Corcoran case?
B. Putting aside the language of the ERISA statute, do you think
such pre-emption is a good idea? What are the arguments for and
against it as a matter of policy?

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Aftermatter
Unmarked Edits Generally

(For both volumes)
Various edits are not marked in the text. They have been left
unmarked because to mark them would have made the text
substantially less readable.
In general, whole citations and portions of citations have been
liberally removed from the readings. Parallel citations have been
removed generally. Spaces have been added or deleted in cases where
the observed style was unconventional and jarring. In cases where
case names were printed in roman type, case names have generally
been italicized. Where quotation marks occurred around a
blockquote, they have generally been removed. Lengthy portions of
quoted material have sometimes been re-set as blockquotes. Dashes
and ellipses have been set in a uniform typographical style regardless
of how they appeared in the original document. Official headnote
references have been eliminated. In addition, I have sought to
remove all indicia of additions to any text made by unofficial
publishers. Footnote references and footnotes have been removed
without notation.
The author attributions at the beginning of case material, in general,
are not attributable to the original source. In various places, the
spelled-out word “section” has been replaced with the § symbol,
including in Rowland v. Christian, Beswick v. CareStat, the text discussing
California Civil Code § 847, and Issacs v. Monkeytown, U.S.A.
Typesetting for citations may have been changed, such as from
lower-case to small-caps for titles of journals, for example in Tarasoff
v. UC Regents and Weirum v. RKO.
Case citations have generally been changed so that where the court
uses a secondary-reference citation style, if it is the first reference in
the case as it appears in edited form in this casebook, the secondaryreference cite has been replaced with the full citation as is appropriate

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for use on first reference. In some cases, punctuation was changed to
accommodate cites that were eliminated without notation.

Idiosyncratic Unmarked Edits in this Volume
Idiosyncratic unmarked edits were made as follows:
Material from footnotes was reworked into the body of the text
without notation in the following cases: Georgetown v. Wheeler, Rogers v.
Retrum, Bruenig v. American Family Insurance, Sindell v. Abbott Labs, and
Cocoran v. United Healthcare. The reworked material does not
necessarily appear at the precise point of the omitted footnote
reference (often done because references were in the middle of
sentences). Punctuation has in some cases been added or altered to
accommodate this.
Georgetown v. Wheeler: An asterisk has been used to replace a numerical
reference for a footnote reproduced in the case.
Weirum v. RKO: Quotation marks have been removed for material
reformatted as a blockquote.
Boyd v. Racine Currency Exchange: Some text has been rearranged
without notation. Recited facts are as alleged.
South v. Amtrak: Quotation marks have been removed for material
reformatted as a blockquote. Underlining has been changed to italics.
Some brackets have been changed to parentheses. “AMTRAK” has
been changed to “Amtrak”.
Vaughn v. Menlove: Two periods have been replaced by colons at the
ends of paragraphs introducing the appellate lawyers’ arguments.
Martin v. Herzog: A colon has been added without notation. Quoted
matter re-set as blockquotes. Numbers spelled out in words have
been replaced in appropriate instances with numerals.
In the text from Calvillo-Silva v. Home Grocery that follows California
Civil Code § 847, spaces after dollar signs have been removed.
Campbell v. Weathers: Testimony excerpts have been reformatted and
quotation marks dropped. Other quoted matter has been reformatted
as blockquotes.

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Rowland v. Christian: Long quotations have been re-set as block
quotes.
In the T.J. Hooper and United States v. Carroll Towing, single quotes
around vessel names were removed and vessel names were italicized.
Inconsistent use of a period after “Anna C” was corrected to remove
all such periods except where occurring at the end of sentences. In
Carroll Towing, a typo “it it” was corrected to “it.”
In Fowler v. Seaton: The errant comma in “September, 1958” was
removed.
Beswick v. CareStat: A missing period was supplied. Some quoted
matter was re-formatted in blockquote form.
Herskovits v. Group Health: Roman numeral section headers have been
removed. Secondary-reference cites have been altered to be put into
the form of first-reference cites, since the locations of the firstreference cites were removed through editing. The order of the
opinions (concurring and dissenting) has been changed. Blockquotes
have been reformatted to be inline quotes.
Hulsey v. Elsinore Parachute Center: Section headers have been removed,
and case citations have been changed to a full citation on first
reference.

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