Brown v. Kendall60 Mass. (6 Cush.) 292 (1850)

Kendall was minding his own business beating two dogs with a stick. Brown came up behind Kendall, and Kendall accidentally whacked him in the eye with the stick. Brown sued.

During the trial, Kendall requested that the jury be told that if he was using ordinary care and the Brown was not, then Brown could not recover.

o The judge declined to give that instruction to the jury. Instead, he told the jury that if Kendall was doing a necessary act, and was doing it in a proper way, then he was not responsible for his action, provided he was using proper care. If it was not a necessary act, then Kendall would be responsible for the consequences of the act unless he was exercising extraordinary care.

The Trial Court found for Brown. Kendall appealed. The Appellate Court vacated the judgment and ordered a new trial.

o The Appellate Court felt that this was a case of trespass vi et armis. Trespass vi et armis means, "with force of arms." It generally refers to trespass against

someone's body. It eventually turned into the concept of modern intentional torts (assault, battery, false imprisonment)

Trespass only applies to direct harms. Indirect harms were called trespass on the case, and eventually turned into our concepts of negligence torts.

o The Court found that if a defendant's intention was unlawful or the defendant was at fault then the plaintiff could recover.

o However, if the injury was unavoidable, and the defendant's conduct was "free from blame" then there would be no recovery.

Basically, the Court said that if you are not doing something illegal, and you are exercising due care while doing it, then you can't be held liable for an unintentional injury that results.

o It is the burden of the plaintiff to show that the defendant was not exercising due care. This case marked a shift in jurisprudence. Before, courts tended to impose strict liability for direct,

forcible harms so if someone got hurt you were liable, regardless if you weren't being negligent or not. After this case, courts move to a more fault-based liability, which said that you are only liable if you were somehow negligent.

o See the English case of Rylands v. Fletcher (L.R. 3 H.L. 330 (1868)), which came to the opposite conclusion as this case.

United States v. Carroll Towing Co.159 F.2d 169 (2d Cir. 1947)

The Connors Company owned a barge. It was being towed by a tugboat owned by Carroll Towing (and operated by Grace Line). Carroll Towing towed the barge in a negligent manner. It broke free, drifted around for a while, hit another boat, and then sank.

o Carroll had tied a whole bunch of barges together, and that stressed the lines too much, and all the ships broke free.

The Trial Court found Grace Line and Carroll Towing liable for negligence in the incident.o Carroll argued that Connors was partially responsible, and therefore should bear some of the

costs (aka contributory negligence). The Connors' barge did not have anyone on board during the tow. If there was someone

on board, they could have mitigated the damage and prevented the barge from sinking.o Connors argued that putting a guy on every barge just in case there is an accident was expensive

and not worth the cost. The Appellate Court reduced the damages.

o The Appellate Court found that it was reasonably foreseeable that the barge would break free. Therefore, Connors needed to take reasonable care to mitigate potential damages.

o The Court created an algebraic formula for determining care. They found that if (Probability of injury) x (Potential liability) > (Costs of the extra burden), then you have a duty to take on that extra burden.

This reasoning is sometimes known as the risk-utility formula, or the Hand Formula, since the judge who gave this opinion was the famous Learned Hand.

With this formula, you really have to integrate over the various possibly injuries and the probabilities of those results. For example, what if there is a 10% chance of killing 1 person and a 1% chance of killing 10 people. The math gets complicated.

Note that the risk-utility formula only applies to situations where the defendant has time to weigh options and make a conscious choice. It wouldn't apply to situations like car accidents where someone has to make a quick decision.

o The Court found that in this case, the amount of damage from the crash multiplied by the chance that an accident would occur was a lot more than the salary Connors would have to pay a guy to stay on the boat just in case. Therefore, based on the risk-utility formula, they were negeligent.

The risk-utility formula is different than most jury instructions. Juries are typically instructed to decide if the defendants acted reasonably under the circumstances and anticipated foreseeable events. They aren't given formulas.

o The risk-utility formula is most often used by appellate courts to determine if the damages a jury gave are reasonable, and by trial judges to determine if there should be a directed verdict.

o Most defendant's would never bring up the risk-utility formula in front of a jury, since it tends to make the defendant look cold and not empathetic.

Baltimore & Ohio R. Co. v. Goodman , 275 US 66 (1927).

Case Summary

Facts: Goodman was struck and killed by one of Baltimore & Ohio railroad’s (D) trains as he was driving across a railroad crossing. Goodman’s view of the crossing was blocked and he did not stop, look, or listen for approaching trains.

Goodman’s widow (P) sued and the railroad moved for a directed verdict on the grounds that Goodman’s death was the consequence of his own negligence. The trial court entered judgment in favor of Goodman, the court of appeals affirmed, and D appealed.

Issues:

1) Can a party prevail on a negligence claim if the evidence shows that that party failed to take reasonable precautions to guard against a risk that he was aware of?

2) In an action for negligence, is the question of due care a matter for the finder of fact to decide when it can be resolved by a clear standard of conduct?

Holding and Rule:

1) No. A directed verdict should be entered against a party who has suffered injury because he failed to take reasonable precautions to guard against a known risk. The court held that Goodman was contributorily negligent for not stopping and looking. No reasonable jury could have found in favor of P under these facts.

2) Normally the question of due care is left to the finder of fact but when the standard of conduct is clear it should be laid by the courts.

Disposition: Reversed.

Notes: The basis of the court’s decision here is contributory negligence. The finder of fact normally determines the applicable standard of care unless the standard is clear. Under the old common law contributory negligence was a complete bar to recovery. Contributory negligence is conduct that falls below the standards established by law for self protection.

Pokora v. Wabash Ry. Co. , 292 U.S. 98, 54 S.Ct. 580, 78 L.Ed. 1149 (1934).

Case Summary

Facts: Pokora (P) approached a Wabash (D) railroad crossing in his truck. Pokora stopped and looked and listened as well as he could. P heard no bell or whistle and drove slowly ahead and was struck by a passenger train. P sued Wabash for his injuries and the trial court granted a directed verdict in favor of D on the grounds that P was contributorily negligent as a matter of law. The ruling was affirmed by the court of appeals and D appealed to the United States Supreme Court.

Issues: 1) What is the duty imposed on a party when crossing a railroad track? 2) What criteria must courts of law use in establishing a standard of prudent conduct as a rule of law?

Holding and Rule:

1) There is a duty before crossing a railroad track to stop, look, listen, and to get out of the vehicle and reconnoiter if the view is obstructed and one cannot otherwise be sure that a train is not dangerously near – provided that sight and hearing become inadequate for a traveler’s protection.

2) A standard of prudent conduct declared by courts as a rule of law must be taken over from the facts of life, and must be such that a failure to conform to it is negligence so obvious and certain that rational and candid minds could not deem it otherwise.

The circumstances of the situation dictate the duty that is due and the duty to stop and look is predicated on circumstances where sight and sound alone make it dangerous to a reasonable person. It is up to the jury to decide whether a particular course of action was prudent under the circumstances.

Disposition: Reversed and remanded.

Notes: The standard for measuring negligence is conduct that falls below the standard established by law for the protection of others against an unreasonable risk of harm. That standard must be determined by the fact finder on a case by case basis. The negligence standard never changes; it is only the circumstances that change and how a reasonable person acts under them.

Andrews v. United Airlines , 24 F.3d 39 (9th Cir. 1994).

Case Summary

Facts: Upon arrival of a United Airlines (D) flight at the gate, a briefcase fell from the overhead compartment seriously injuring Andrews (P). Passengers were warned on arrival that items stored in overhead bins may have shifted and that passengers should use caution. Expert testimony revealed that there had been 135 reported incidents of items falling from overhead bins. Andrews appealed the district court’s grant of summary judgment in favor of United Airlines.

Issue: Is the question of whether an airline has a duty to do more than warn passengers about the possibility of falling luggage a matter for the jury to decide?

Holding and Rule: Yes. Common carriers must use the best precautions in practical use known to any company exercising the utmost care and diligence in keeping abreast with modern improvements in such precautions. Many jurors have been airline passengers and are equipped to decide if D should have done more to warn the passengers. Summary judgment was not appropriate.

Disposition: Reversed and remanded.

Trimarco v. Klein , 56 N.Y.2d 98, 436 N.E.2d 502 (1982).

Case Summary

Facts: Trimarco (P) fell through the glass door enclosing the bathtub in his apartment and suffered severe injuries. After the accident it was determined that the glass was ordinary glass. Trimarco sued his landlord Klein (D) for his injuries.

At trial, Trimarco introduced expert testimony regarding the custom and usage of tempered glass. The expert testified that the use of shatterproof glazing materials for bathroom enclosures had been in common use since at least the early 1950s such that by 1976 the glass door in P’s bathroom did not conform to accepted safety standards. Under New York law, only safety glazing materials had been permitted for use as of 1973. D’s management admitted that it had been customary for landlords to replace glass with safety glass since 1965.

The trial court entered judgment in favor of P. On appeal the appellate division reversed, holding that Klein did not have a duty to replace the glass unless he had prior notice of the danger. P appealed.

Issue: Can custom and usage establish per se the reasonable person standard?

Holding and Rule: No. Evidence of custom and usage is highly relevant to the reasonable person standard but it does not per se define the scope of negligence. When proof of an accepted practice is accompanied by evidence that the defendant conformed to it, this may establish due care. When proof of a customary practice is coupled with a showing that it was ignored and that this departure was a proximate cause of the accident, it may serve to establish liability. What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.

The court held that in this case P presented more than an abundance of evidence to the jury to reach and sustain the verdict below.

Disposition: Order for new trial reversed – judgment in favor of P.

Notes: Custom and usage is good evidence of what ought to be done but it must still be reconciled with the reasonable person standard.

Martin v. Herzog , 228 N.Y. 164, 126 N.E. 814 (1920).

Facts: Martin (P) was killed in a collision between his buggy and Herzog’s (D) car. Martin was driving at night without lights and Herzog (D) was driving on the wrong side of the road. Herzog claimed that Martin’s failure to use headlights constituted contributory negligence and barred him from recovery.

At trial the judge instructed the jury that it could consider whether Martin had been contributorily negligent in failing to have a light upon the buggy as provided by law, but that not having a light did not necessarily make him negligent. The jury was instructed that they were at liberty to treat the omission of the lights either as innocent or as contributorily negligent. The jury found in favor of P. The Appellate Division reversed and P appealed.

Issue: May a jury relax the duty that one traveler owes under a statute to another? Is negligent conduct actionable by itself, or must there also be a showing that the negligence was the cause of the injuries incurred?

Holding and Rule: The unexcused violation of a statutory duty is negligence per se and a jury may not relax the duty that one traveler owes under a statute to another. Negligent conduct is not actionable by itself unless there is a showing that such conduct was the cause of the injuries incurred.

The rule is applied less rigidly where the other party was not a member of the class for whose protection the safeguard was intended, and where the safeguard is by local ordinance rather than by statute.

A defendant who travels without lights is not to pay damages for his fault unless the absence of lights is the cause of the accident. To say that conduct is negligence is not to say that it is always contributory negligence. To impose liability there still must be a showing of cause, proximate cause and damages.

The court held that evidence of a collision at night 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 lights. If no other evidence is offered to break the causal connection, then there is contributory negligence.

Disposition: Affirmed.

Notes: Where a party has been negligent per se, in order for that party to be liable there also must be causation and damages. Negligence alone is not enough.

Negri v. Stop & Shop, Inc. , 65 N.Y. 2d 625, 491 N.Y.S. 2d 151, 480 N.E. 2d 740 (1985).

Subject Matter: Appeal of a slip-and-fall personal injury case.

Facts: Negri (P) slipped and hit her head on the floor in a Stop and Shop (D) grocery store. There were broken jars of “dirty and messy” baby food nearby. A witness had not heard any jars break in that area for approximately twenty minutes before the accident and the aisle had not been cleaned for one or two hours. The trial court found in favor of P and D appealed. On appeal, the Appellate Division reversed in favor of D and P appealed.

Issue: Is circumstantial evidence sufficient to permit a jury to determine whether a dangerous condition existed long enough to give the store sufficient notice to discover and remedy the condition?

Holding and Rule: Yes. The circumstantial evidence presented enabled P to establish a prima facie case that the store had constructive notice of the hazardous condition. The evidence was sufficient to withstand summary judgment in favor of D and it was error to dismiss the complaint. A store has a duty to protect invitees from known or concealed dangerous conditions. The circumstantial evidence permitted the inference that D had constructive notice of the dangerous condition of the floor.

Disposition: Reversed.

Gordon v. American Museum of Natural History

Facts: In this case, a guy was leaving the museum and he was going down the steps and he slipped on the 3rd stair and saw a piece of wax paper that came from the concession stand outside of the museum that the museum had contracted to have present. The plaintiff says that the defendant should have had constructive notice or actual notice of the dangerous condition presented by the paper on the steps. The case went to the jury on the theory that the defendant had actual or constructive notice of the dangerous condition presented by the paper on the step.Procedural History: The jury found for the plaintiff and the appellate level affirmed. Issue: Did the appellate level err?Holding: Yes. Order is reversed and the certified question is answered in the negative (no constructive or actual notice)Reasoning:

1. There is no evidence in the record that the ∆ had actual or constructive notice of the paper and the case should not have gone to the jury on that theory.

1. Constructive notice—a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.

2. Record contains no evidence that anyone including plaintiff observed the piece of paper before the accident.

3. Plaintiff did not describe the paper as dirty or worn which would have provided some indication that it was there for a while

4. On the evidence presented, the piece of paper could have been deposited there only minutes or seconds prior to the plaintiff’s fall.

Byrne v. Boadle , 2 H. & C. 722, 159 Eng. Rep. 299 (Exch. 1863).

Facts

Byrne (P) was struck by a barrel falling from a window as he walked past Boadle’s (D) flour shop and sustained serious personal injuries. A witness testified that he saw the barrel fall from Boadle’s window but had not seen the cause. Byrne did not present any other evidence of negligence by Boadle or his employees.

Boadle moved for a nonsuit on the grounds that Byrne had presented no evidence of negligence. The court granted the motion and plaintiff obtained a rule nisi. The Court of Exchequer found in favor of Byrne and reversed. Boadle appealed.

Issue

Can liability for negligence lie solely on account of the type of accident that occurred, without direct evidence of negligence?

Holding and Rule

Yes. Liability for negligence can lie solely on account of the type of accident that occurred, without direct evidence of negligence.

Pollock

A presumption of negligence can arise from an accident. A party need not present direct evidence of negligence when the mere manner and facts of the accident show that it could not have happened without negligence on someone’s part.

A barrel could not roll out of a warehouse window without negligence. This is an example of a case in which res ipsa loquitur (“the thing speaks for itself”) applies. It is evident that the barrel was in the custody of Boadle and its falling is prima facie evidence of negligence. A plaintiff who is injured in a such a fashion should not be required to show that the barrel could not fall without negligence. A rebuttable presumption is created that Boadle was negligent and he has the burden to prove that he was not.

Channel:

Boadle had a duty to ensure that those passing by his shop are not injured by objects under his control. In this case there was a scintilla of evidence with respect to negligence. The defendant failed to show that he was not negligent and Byrne is entitled to the verdict.

Disposition

Judgment for Byrne affirmed.

Notes

The doctrine of res ipsa loquitur cannot be applied when there is direct evidence of the cause of the injury and facts and circumstances surrounding it.

To apply res ipsa loquitur, the following elements must be present:

1. The accident must be of a type that normally would not occur in the absence of negligence.2. There was no contribution to the plaintiff’s injuries by the plaintiff or any third party.3. The source of the negligence falls within the scope of the duty owed by the defendant to the plaintiff.

This usually (but not necessarily) arises where the instrument causing the injury was within the exclusive control of the defendant, or where there is an inability to identity the specific source of harm. Frequently it arises where the source of negligence lies within a group of people who are unwilling or unable to divulge the actual source.

The plaintiff must still prove all of the other elements to prove that the defendant was liable (i.e. proximate cause etc.)

Note that the theory of the negligence in Summers v. Tice is similar to the concept of res ipsa loquitur. In that case the plaintiff was shot and injured by one of two other hunters. While it was certain that one of the two men caused the harm, the plaintiff could offer no proof showing which defendant was at fault. The court shifted the burden of proof to the defendants to prove their innocence.

McDougald v. Perry

Court: Supreme Court of Florida (716 So.2d 783)Year: 1998Parties (role): McDougald, Appellant (plaintiff); Perry, Respondents (defendant)

Procedural History:Trial court instructed jury on the doctrine of res ipsa loquitur. Jury found for plaintiff. On appeal, the appeals court reversed the lower court with instructions that the trial court direct a verdict in Perry’s (defendant) favor. Claimed that the trial court erred by: (1) not directing verdict on the issue of negligence; (2) instructing the jury on res ipsa loquitur. Plaintiff appeals to SC.

Facts of Case:Plaintiff was driving behind defendant (driving a tractor-trailer). A 130lb. spare tire which was fastened under the tractor trailer came lose, and when defendant’s back tire rolled over it, the tire bounced in the air and crashed into plaintiff’s windshield. Defendant claims he inspected the chain (6 foot; original one from 1969) and found nothing wrong.

Legal Issue:Whether the loss of a spare tire, which resulted in an accident, can be found negligent under the rule of res ipsa loquitur

Rule:Res ipsa loquitur: “It is a rule of evidence that permits, but does not compel, an inference of negligence under certain circumstances.” ?”Inference” view

Goodyear Tire & Rubber Co. v. Hughes Supply, Inc. (1978) – “Essentially the injured plaintiff must establish that (1) the instrumentality causing his or her injury was under the exclusive control of the defendant, and that (2) the accident is one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control.” – (only “more likely than not” that defendant’s actions were negligent)

Res ipsa loquitur applies only in “rare instances” –

Basically, if you can say: “This accident would not have happened but for the failure to exercise reasonable care by the person or entity in control of the injury producing object or instrumentality,” then you probably can apply res ipsa loquitur to infer negligence on behalf of defendant.

Holding:“We conclude that the spare tire escaping from the cradle underneath the truck, resulting in the tire ultimately becoming airborne and crashing into McDougald’s vehicle, is the type of accident which, on the basis of common experience and as a matter of general knowledge, would not occur but for the failure to exercise reasonable care by the person who had control of the spare tire.”

Judgment:Reversed the district court (appeals court), which had reversed the trial court, and remanded for consideration of remaining issues.

McDougald v. Perry Title: McDougald v. Perry

Citation: Supreme Court of Florida (1998) 716 So. 2d 783 240

Facts: The plaintiff, Mr. McDougald, was driving on a highway behind the defendant, Mr. Perry, when a 130-pound spare tire fell from its cradle underneath the trailer when the defendant drove over some railroad tracks. The trailer's rear tires ran over the spare tire, causing it to bounce up and hit the plaintiff's windshield, which resulted in injuries. The spare tire was in an angled cradle beneath the trailer and held in place by its own weight, in addition to being secured by a four to six-foot chain with one-inch links, wrapped around the tire. The defendant testified that the chain was the original one that came with the trailer in 1969. The original design latched the chain to the body of the trailer. At the time of the accident, the chain was attached to the body of the trailer with a nut and bolt. The defendant performed a pre-trip inspection of the trailer on the day of the accident, including an inspection of the chain, though not every link.

After the accident, the defendant noticed the chain was dragging under the trailer. He believes one of the links stretched and slipped from the nut which secured it to the trailer.

Procedural History: The judge instructed the jury regarding the doctrine of res ipsa loquitur. The jury returned a verdict for the plaintiff. The defendant appealed and the district court reversed the trial court's decision on the basis that the trial court erred in instructing the jury on res ipsa loquitur. The district court found that the plaintiff had not proved the accident would have occurred in the ordinary course of events without negligence by the defendant. The court found that the mere fact that the accident occurred is not enough for application of the res ipsa loquitur doctrine.

Issue: Should the doctrine of res ipsa loquitur be given in jury instructions in determining negligence for an accident caused by the dislodging of a tire from under a trailer, when no direct evidence exists?

Holding: The doctrine of res ipsa loquitur can be applied in the case of an escaped tire where, on the basis of common experience and as a matter of general knowledge, the jury could infer, even without direct evidence, that the accident would not have occurred without the failure to exercise reasonable care by the defendant.

Rules: The doctrine of res ipsa loquitur can be applied in rare-instances to common-sense inferences when the facts of the accident by themselves establish that, but for the breach of reasonable care by the person in control of the injury-producing object, the accident would not have occurred. The requirements for the res ipsa loquitur doctrine are that the incident/occurrence is one that does not normally occur without negligence by the defendant and that the defendant was in exclusive possession of the instrumentality that caused the injury.

Analysis: In Marrero v. Goldsmith the Court held that the rule of res ipsa loquitur is a mere rule of evidence that allows, but does not require, the inference of negligence under certain circumstances. In Goodyear Tire & Rubber Co. v. Hughes Supply, Inc. the Court explained the doctrine of res ipsa loquitur as allowing the plaintiff to make a common-sense inference of negligence where they lack direct proof of negligence as long as there are elements consistent with negligence. The plaintiff must establish that the item that caused the injury was under the exclusive control of the defendant and that the accident would not have occurred in ordinary circumstances without negligence by the person in control of the item. In Burns v. Otis Elevator Co., which the defendant cites in support of the district courts holding, the Court found the plaintiff must present evidence beyond the accident itself to show the jury that the accident would not have occurred but for the defendant's breach of due care. The defendant asserts that res ipsa loquitur cannot apply in this case because there was no testimony or evidence suggesting the accident would not have occurred in ordinary circumstances absent the defendant's negligence.The district court (both in this case and in Burns) interprets the holding in Goodyear too narrowly. The holding is "An injury standing alone, of course, ordinarily does not indicate negligence. The doctrine of res ipsa loquitur simply recognizes that in rare instances an injury may permit an inference of negligence if coupled with a sufficient showing of its immediate, precipitating cause" (241, quoting).The Restatement of Torts, on the application of the doctrine of res ipsa loquitur distinguishes between the (1) Type of Event, which requires a basis of past experience which allows for the determination that the events that caused the accidents do not happen without negligence. Many accidents occur without any fault, but there are also accidents that cannot occur without negligence (such as objects falling from the defendant's premises, an elevator falling, the escape of gas or water from mains or of electricity from wires or appliances, the derailment of trains, etc.) (2) Basis of Conclusion: Requires general knowledge, which can be (but is not required to be) supplied by evidence such as expert testimony. Testimony may be required in some cases for the plaintiff to prove his/her case, such as in medical malpractice where it is not a matter of general knowledge of a lay person. Other cases do not require the plaintiff to

present testimony, such as events where the jury would know, without the need for an expert that the accident would not occur without negligence.Escaped wheel cases generally allow for the application of the res ipsa loquitur doctrine because a tire generally stays attached to a vehicle, absent negligence from the person in control of the truck. The doctrine of res ipsa loquitur allows for speculation of other causes, besides negligence, that affected the accident. The question of whether to apply the doctrine of res ipsa loquitur to the particular facts of a case is a question for the jury (that negligence was more likely than not a cause for the accident).

Disposition: Reversed the district court, reinstating the trial court's judgment of the defendant's liability based on the jury's verdict.

Concurrence: The circumstances of the case before the court present a classic example of the role of common sense in the human experience, as first expounded by the court in Byrne v. Boadle. The concurrence quotes the part of the opinion in Byrne v. Boadle where Judge Pollock declares that the rule of res ipsa loquitur must be absolute for the plaintiff, and allows for the accident to establish prima facie evidence of negligence. The defendant has the opportunity to present facts rebutting the assumption of negligence. The judge's explanation need not be expanded or improved upon, illustrating that the common law tradition is alive and well.

Ybarra v. Spangard Title: Ybarra v. Spangard

Citation: Supreme Court of California, (1944), 25 Cal.2d 486, 154 P.2d 687

Facts: Plaintiff went to the hospital for an appendectomy. After waking up from anesthesia, the plaintiff noticed pain in his shoulder, a condition he had never had before. After leaving the hospital the condition grew worse resulting in paralysis and atrophy in his shoulder.

Procedural History: Plaintiff appealed from a judgment of nonsuit.

Issue: Where a patient who undergoes an operation and is made unconscious, and awakes with an inexplicable injury, for which he can present no evidence to show its cause, but from which he did not previously suffer, can the doctrine of res ipsa loquitur apply, although multiple parties and instrumentalities may have been involved?

Holding: Where a patient who undergoes an operation and is made unconscious, and awakes with an inexplicable injury, for which he can present no evidence to show its cause, but from which he did not previously suffer, the doctrine of res ipsa loquitur can apply, although multiple parties and instrumentalities may have been involved.

Rule: Where a plaintiff receives unusual injury while unconscious and in the course of medical treatment, all parties who had control over the body or an instrumentality that may have caused the harm, may properly be called on to explain their conduct or meet an inference of negligence.

Analysis: It is established in this case that injury was in no part due to the plaintiff’s actions, he being unconscious at the time, and furthermore that such injury ordinarily does not occur unless someone was negligent. This elements of res ipsa loquitur satisfied, the defendants contest that the second element of res ipsa loquitur is not satisfied because there is no evidence that the instrumentality causing the injury was under their exclusive control, or even what the

instrumentality in fact was. However the number and variety of defendants or uncertainty of instrumentality should not preclude that application of res ipsa loquitur, but should be subject to trial allowing defendants to come forward with evidence that will exonerate them if such exists. An injury to an unconscious person certainly seems to fall within the reason and spirit of res ipsa loquitur.

Disposition: Judgment reversed. At trial, all defendants claimed ignorance of any cause and so the judge found against all of them.

Note: Not all states accept the rule of this case, so be prepared for differences depending on the jurisdiction.

Sheeley v. Memorial Hospital , 710 A.2d 161 (R.I. 1998).

Facts: Sheeley (P) gave birth and received an episiotomy. Sheeley developed complications and sued the physician and Memorial Hospital (D). P sought to introduce the testimony of an expert witness to establish the standard of care and D objected on the grounds that an expert witness must be in the same field as the defendant physician. The trial court sustained and entered a directed verdict in favor of D. P appealed.

Issue: 1) What are the criteria for determining whether an expert witness is qualified to testify regarding the standard of care in the medical field? 2) Is the appropriate standard of care regarding cases in the medical field based on the standard of reasonable care in the same or similar locality, or on a national standard?

Holding and Rule: 1) Any doctor with knowledge of the procedure acquired through experience, observation, association, or education is competent to testify about the requisite standard of care. In deciding whether to qualify an expert the court should consider a physician’s resources, practice area, and experience, but no one issue should be determinative. 2) The appropriate standard of care regarding cases in the medical field is based on a national standard of reasonable care.

Policy: The “same or similar locality” rule has come under attack because it legitimizes a low standard of care in smaller communities; furthermore the standard failed to address the conspiracy of silence that has prevented plaintiffs from obtaining expert testimony. The old standard is no longer applicable in view of the present day realities of the medical profession and modern transportation and communication.

Disposition: For P.

Harper v. Herman , 499 N.W.2d 472 (Minn. 1993).

Facts: Harper (P) was one of four guests on Herman’s (D) boat. Harper and Herman did not know each other prior to the outing and Harper had been invited by another guest. Herman took the group to a popular recreation spot with which he was familiar. D asked if P was “going in”. P said yes and dove into two or three feet of water unannounced. P severed his spinal cord rendering him a quadriplegic. P sued D and the trial court granted summary judgment for D. P appealed and the judgment was reversed. D appealed.Issue: What duty does a social host owe to a guest?Holding and Rule: A special relationship is required for an affirmative duty to exist. Under the Restatement (Second) of Torts, a special relationship can be found when that other person is deprived of normal opportunities of self-protection, and under this rule, this special relationship could only exist if Herman had custody of Harper under circumstances in which Harper was deprived of normal opportunities to protect himself. In this case the court found that the record did not establish that Harper had been either particularly vulnerable or that he had lacked the ability to protect himself.

From the Restatement (Second) of Torts: There are many dangers, such as those of fire and water, which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child. If a child is expected to understand the inherent dangers of water, so should a 20-year-old adult.

Disposition: Judgment for D reinstated – reversed and remanded.

Farwell v. Keaton , 396 Mich. 281, 240 N.W.2d 217 (1976).

Parties: Farwell – plaintiff, father of Farwell, deceased; Keaton – defendant, attacker; Siegrist – defendant, Farwell’s companion.Facts: Farwell and Siegrist (D1) consumed beer at a trailer rental lot while waiting for a friend to finish work. They unsuccessfully attempted to engage in conversation with two females and followed the girls to a drive-in restaurant. They were chased back to the lot by six boys including Keaton (D2) after the girls complained to some friends. Siegrist escaped but Farwell was severely beaten.D1 found Farwell, applied ice to his head, and drove around with him in Farwell’s car for about two hours. Farwell fell asleep in the back of the car and D1 left the car in Farwell’s grandparents’ driveway at midnight. D1 left after unsuccessfully attempting to rouse Farwell. Farwell’s grandparents found him and took him to the hospital where he died three days later.

Farwell’s father (P) sued D1 for wrongful death and the jury awarded P $15,000. The Court of Appeals reversed, holding that D1 had not assumed the duty of obtaining aid for Farwell, and neither knew nor should have known of Farwell’s need for medical treatment. P appealed.

Issues: 1) Does a special relationship exist between parties engaged in a common undertaking that imposes an obligation to render assistance when one is in peril? 2) Is a determination of whether a duty exists an issue of fact or of law?Holding and Rule (Levin): 1) Yes. A special relationship exists between parties engaged in a common undertaking that imposes an obligation to render assistance when one is in peril. 2) The existence of a duty is ordinarily a question of law; however where there are factual circumstances which give rise to a duty, the finder of fact must determine the existence or non-existence of those circumstances.Every person has a duty to avoid any affirmative acts which may make a situation worse. If a party attempts to aid another and takes charge and control of the situation, he is regarded as having voluntarily assumed responsibility for that person.

The jury must determine, after considering all the evidence, whether the defendant attempted to aid the victim. The court held that in this case there was ample evidence to show that Siegrist breached a legal duty owed to Farwell. The jury found that Siegrist did not act reasonably and that his negligence was the proximate cause of P’s death.

Public Policy: There is no legal obligation to be a Good Samaritan. Where such a duty has been found, it has been predicated upon the existence of a special relationship between the parties: carriers to passengers, employers to employees, innkeepers to guests, jailers to prisoners, and masters to crewmen at sea who fall overboard. In this case the special relationship is that they were companions on a social venture and that if it were found that Siegrist had no duty it would be shocking to humanitarian considerations and fly in the face of the commonly accepted code of social conduct.Disposition: Reversed, jury verdict reinstated.Dissent (Fitzgerald): D1 did not voluntarily assume the duty of caring for Farwell’s safety. D1′s inability to arouse the decedent upon arriving at his grandparents’ home does not permit us to infer that he knew or should have known that the deceased was seriously injured.Under Michigan law the question of duty is to be resolved by the court rather than the jury. The Court of Appeals properly decided as a matter of law that defendant owed no duty to the deceased. We would affirm.

Randi W. v. Muroc Joint Unified School District

Facts:-This case of 1st impression was tried before the supreme court of CA as a case of negligence.

-The plaintiff, Randi, accused four schools districts writing letters of recommendation for a teacher they knew to have a history of sexual misdeeds with students

-Randi alleged that she was sexually assaulted by Gadams, an assistant principal who had received a job at her school.

-The previous school districts knowingly concealed Gadams’ past allegations and resignations for sexual misconduct with students.

Procedure:-The only issues discussed here are those of misrepresentation and fraud.

-The superior court granted demurrers on both counts to defense, court of appeals reversed.

-Plaintiff appealed to supreme court.Issue:

Under CA law, does negligence arise from non-disclosure of past sexual misconduct when a teacher sexually assaults a student at a new school after being hired due to letters of recommendation not explaining his resignations and allegations of sexual misconduct?

Holding:

Yes, it does. The schools had a duty to inform the hiring school of those qualities that could possibly cause harm to a third party.

Reasoning:-Did defendants owe a duty of care?-Defendant argued that there was no special relationship present that required them to disclose.

-Court held in previous cases that if you begin to communicate information, you are required to deliver all pertinent information.

o -The court, as this is 1st impression, applies the general standard for existence of duty.

1. Foreseeability of harm to the plaintiff, and connection b/t harm and defendant.2. Availability of insurance or alternate courses of conduct.

3. Public policy considerations (moral blame, preventing future harm, etc.)4. Foreseeability:5.

1. Assault was reasonably foreseeable.2. Defendant’s actions form a causal connection to the assault.

6. Availability of Insurance7.

1. Had it to cover; standard business liability.2. The defendants had alternate courses of conduct they could have pursued:

1. They could have refused to write.2. They could have written a full disclosure.3. They could have written a no-comment.

8. Public Policy9.

1. The write owes to a third person not to misrepresent the facts;1. Not disclosing the whole truth is in fact, lying, or misrepresenting. If it is

understood to be the whole.2. Morally blameworthy

1. Could be characterized.10.Misleading or Misrepresentation?11.

1. The fact that omissions were made in this case allows for the exception to the rule excluding liability for mere non-disclosure or failure to act.

Notes and Questions:

1. This suggests that the court take a broader view. The jury can look at the instant circumstances; the instant parties to assume reasonable, but eh court is expected to look more generally. Not the principal parties, but a similar circumstance. What effect would this have generally? What would the effect of this happening generally entail?

1. Makes for a subjective definition of foreseeability.2. The difference between Morgan and Garcia is that Morgan showed and omission, an

oversight; Garcia showed misrepresentation, or misleading information. Garcia does not govern this case b/c in Garcia, there was a special relationship b/t the woman and the parole officer.

3. I don’t think this would be held in the same esteem, as the moral blameworthiness of the act was taken into account in Randi. The inability to hand things in on time can be fixed; sexual assault cannot be undone.

1. Also, no physical harm and no special relationship. (Has to be personal injury)2. Once again, personal suits may be relevant, but convicting under omissions

could be random.

4. Yes, in attempting to communicate, you must reveal all information that is pertinent, otherwise you are deceiving, as the third party believes your half-truth to be the whole truth.

5. The harm is that the child could be wildly violent or manic. Think the omen- The child could be much more of a commitment than the foster parents could endure- Think autism.

6. The Hopkins approach is more general, and not party specific. Though it does ask the nature of the parties relationship, it doesn’t consider the likelihood of one’s conduct affecting the other or whether there were grounds for necessity in this specific circumstance.

Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976), was a

case in which the Supreme Court of California held that mental health professionals have a duty to protect individuals who

are being threatened with bodily harm by a patient. The original 1974 decision mandated warning the threatened

individual, but a 1976 rehearing of the case by the California Supreme Court called for a "duty to protect" the intended

victim. The professional may discharge the duty in several ways, including notifying police, warning the intended victim,

and/or taking other reasonable steps to protect the threatened individual.

[edit]Facts

Prosenjit Poddar was born into the Dalit ("untouchable") caste in Bengal, India[citation needed]. He came to the UC Berkeley as

a graduate student in September 1967 and resided at International House. In the fall of 1968 he attended folk dancing

classes at the International House, and it was there he met Tatiana Tarasoff. They saw each other weekly throughout the

fall, and on New Year's Eve she kissed Poddar. He interpreted the act to be a recognition of the existence of a serious

relationship. This view was not shared by Tarasoff who, upon learning of his feelings, told him that she was involved with

other men and otherwise indicated that she was not interested in entering into an intimate relationship with him. This gave

rise to feelings of resentment in Poddar. He began to stalk her and apparently developed a wish for revenge.

As a result of this rebuff Poddar underwent a severe emotional crisis. He became depressed and neglected his

appearance, his studies and his health. He remained by himself, speaking disjointedly and often weeping. This condition

persisted, with steady deterioration, throughout the spring and into the summer of 1969. The defendant had occasional

meetings with Tarasoff during this period and tape recorded various of their conversations in an attempt to ascertain why

she did not love him.

During the summer of 1969 Tarasoff went to South America. After her departure Poddar began to improve and at the

suggestion of a friend sought psychological assistance. Prosenjit Poddar was a patient of Dr. Lawrence Moore, a

psychologist at UC Berkeley's Cowell Memorial Hospital in 1969. Poddar confided his intent to kill Tarasoff. Dr. Moore

requested that the campus police detain Poddar, writing that, in his opinion, Poddar was suffering from paranoid

schizophrenia, acute and severe. The psychologist recommended that defendant be civilly committed as a dangerous

person. Poddar was detained, but shortly thereafter released, as he appeared rational. Dr. Moore's supervisor, Dr. Harvey

Powelson, then ordered that Poddar not be subject to further detention.

In October, after Tarasoff had returned, Poddar stopped seeing his psychologist. Neither Tarasoff nor her parents

received any warning of the threat. Poddar then befriended Tarasoff's brother, even moving in with him. Several months

later, on October 27, 1969, Poddar carried out the plan he had confided to his psychologist, stabbing and killing Tarasoff.

Tarasoff's parents then sued Moore and various other employees of the University.

In a criminal case, People v. Poddar, Poddar was convicted of second-degree murder, but the conviction was later

appealed and overturned on the grounds that the jury was inadequately informed. A second trial was not held, and Poddar

was released on the condition that he return to India. [1]

Opinion of the Court

The California Supreme Court found that a mental health professional has a duty not only to a patient, but also to

individuals who are specifically being threatened by a patient. This decision has since been adopted by most states in the

U.S. and is widely influential in jurisdictions outside the U.S. as well.

In the majority opinion, Justice Mathew O. Tobriner famously stated: "... the confidential character of patient-

psychotherapist communications must yield to the extent that disclosure is essential to avert danger to others. The

protective privilege ends where the public peril begins."

Justice Clark dissented, stating in his minority opinion that "the very practice of psychiatry depends upon the reputation in

the community that the psychiatrist will not tell".

Uhr v. East Greenbush Central School District , 94 N.Y.2d 32, 720 N.E.2d 886 (N.Y. 1999).

Facts: Mr. and Mrs. Uhr (P) were the parents of a child who developed scoliosis. Under State law all children from the ages of 8-16 were required to be tested for scoliosis at least once each school year. Uhr sued the East Greenbush Central School District for failing to examine their child. The trial court granted D’s motion for summary judgment and held that the law in question did not create a private right of action, and that Ps had otherwise failed to state a claim for negligence. The appellate division affirmed and P appealed.

Issue:Does a statutory duty per se grant a remedy to a private individual?Holding and Rule: No. A statutory duty does not per se grant a remedy to a private individual.The court acknowledged that P was a member of the class for whose benefit the statute was enacted, and that recognition of a private right to sue would promote the legislative purpose. However, the final Sheehy prong analysis demonstrated that a private right of action would be inconsistent with the legislative scheme. The statute provides for the creation of administrative remedies and regulations. Furthermore the statute specifies that the school district shall not suffer any liability in connection with the tests. The court rejected Ps contention that this gave immunity for misfeasance but not nonfeasance.

Disposition: Affirmed.

Strauss v. Belle Realty Co.

Facts: A failure at a power system left the city in darkness. A tenant at a building suffered an injury in a common area due to the power outage, and the tenant says that the power company had a duty of care to him. The power company had a contractual agreement with the tenant in regard to the tenant’s space and a contractual agreement with the landlord as to the common areas. (tenant went to fetch water form the basement and fell)Procedural History: The lower court granted collateral estoppel against the power company regarding gross negligence and denied the power company’s cross motion to dismiss the complaint, because the court though

that there was a question of fact as to whether the company owed a duty of care to the plaintiff. Court of Appeals reversed and dismissed the complaint against the power company.Issue: Whether the power company owed a duty to ∏ whose injuries from a fall on a darkened staircase may have conceivably been foreseeable, but with whom there was no contractual relationship for lighting in the building’s common areas.Holding: No. Judgment affirmed.Reasoning:

Although a contractual duty is not a prerequisite to finding that a duty of care exists, the courts have a duty to protect a defendant from “crushing liability”

A utility company’s liability in a case where it failed to provide services would be enormous if not limited only to ∏s with a contractual relationship with the company

Moch: water company’s liability would be unduly extended if it allowed a company whose warehouse burned down to sue the water company

The court reserved the question of what remedy would apply in a case where the utility company was guilty of reckless or wanton indifference

Because the power company in this case was guilty of a lower level of misconduct (gross negligence) than contemplated by the Moch court, Moch controls this case

There is an argument that the injuries were foreseeable and that the ∏ was part of a specific, limited, and circumscribed class with a close relationship to the power company

This does not alter the outcome of the case, because the power company provides electricity to millions of customers, and this would do nothing to limit the power company’s exposure to liability to reasonable levels

Also, this argument would not prevent a landlord’s invitees or people making deliveries from suing the power company

DISSENT: Majority does not look at public policy from all angles—may not lead to crushing liability—it may be able to pass the burden of financing damage awards on to its stockholders and customers. Majority has ignored the burdens placed on the injured parties and seems to be making the argument that the more people injured through a tortfeasor’s gross negligence, the less liable the tortfeasor is.

Strauss v. Belle Realty Co., 65 N.Y. 399 (1985) p133.

Subject:

duty

Facts:

Consolidated Power had a problem which left most of NY City in darkness for 25 hours. during this time P, a 77 year old man who rented an apartment went to the basement of the

apartment building in order to get some water he slipped and fell on the stairs as there was no light

Procedure:

In an action against Belle Realty and Con Edison, P alleged negligence against the landlord in failing to maintain the stairs, and negligence against the utility in the performance of its duty to provide electricity. P moved for partial summary judgment against Con Edison to estop it from contesting the charge of gross negligence in connection with the blackout and to establish Con

Edison owed a duty of care to P. Con Edison cross-moved for summary judgement dismissing the complaint, maintianing it had no duty to a non-customer. Court granted the motion insofar as it sought collateral estoppel regarding gross negligence and denied Con Edison's cross motion to dismiss the complaint.

Issue:

Did Con Edison owe a duty of care to a tenant who suffered personal injuries in a common area of an apartment building, where his landlord had a contractual relationship with the utility?

Rule:

Liability for injuries in a building's common areas should, as a matter of public policy, be limited by the contractual relationship.

Holding:

Con Edison is not answerable to the tenant of an apartment building injured in a common area as a result of Con Edison's negligent failure to provide electric service as required by its agreement with the building owner.

Rationale:

Cannot require D to have duty to everyone. Would result in way too many law suits. Must limit recovery to customers.

Policy/Notes:

dissent: majority reached its conclusion by considering only one side of the equation. In essence they are saying the more persons injured through a tort-feasor's gross negligence, the less responsibility for injuries incurred.

privity: mutuality of interest. relationship between two contracting parties, each having a legally recognized interest in the subject matter of the contract.

Reynolds v. Hicks

Facts: Hicks got married and there were a lot of people at the reception including underage nephew Steven. Steven consumed alcohol at the reception and then drove his sister’s car. He then got into a car accident with Reynolds and Reynolds sued the Hicks claiming that they were negligent in knowingly serving alcohol to under age guests. Hicks moved for summary judgement on the grounds that WA did not extend social hist liability to situations where intoxicated under age guest s harm third parties. Procedural History: Trial court granted Hick’s motion and the appellate court certified the case directly to the Washington Supreme Court.Issue: Does a social host who serves alcohol to an underage driver owe a duty of care to a third person injured by the intoxicated minor?Holding: No.Reasoning:

Hanson v. Friend—held that minor that is injured from intoxication has a cause of action against the social host that supplied him with the alcohol.

Reynolds argues that this should be extended to a cause of action for third persons. Such an expansion is not warranted by WA law. This court has been reluctant to extend the same kind of liability to social hosts that is extended to

commercial vendors Social host liability will have more far reaching implications because there are only a limited number of

bars, liquor stores, etc., but there are a lot of adult residents that throw parties. It is unrealistic to expect a couple like the one in this case to monitor their guests on their wedding day

Vince v. Wilson

Facts: Wilson bought her grandnephew a car. Gardner was the salesman and at the time she bought the car, she knew that grandnephew had no license and that he failed several times and she informed Gardner and Ace Auto Sales about this several times. Wilson also knew that he used drugs and drank. Grandnephew got into accident that injured his passenger and passenger sued Wilson, Ace and Gardner for negligently entrusting an auto to an incompetent driver. Procedural History: Trial court directed verdict for Ace and Gardner and the jury returned a verdict against Wilson. Passenger (∏) appealed the directed verdicts and Wilson appealed the jury verdict against her.Issue: Does doctrine of negligent entrustment apply to people that knowingly provide funding to incompetent drivers and to persons that knowignly sell autos to incompetent drivers?Holding: Yes.Reasoning:General rule is that negligent entrustment applies to combined negligence of incompetent driver and car owner who lends car to incompetent driver. ∏ says it should include those who provide funding to incompetent driver and those who sell cars to incompetent drivers. The ∆s argue that it should be limited to car owners who lend their cars. Courts in other states have interpreted the rule more broadly than the ∆s in this case. Restatement rule covers sellers, lessors, donors and lenders. The cases that ∆s use to support their position is highly criticized by legal scholars. The trial court erred in directing a verdict for Ace and Gardner.

Carter v. Kinney , 896 S.W.2d 926 (Mo. 1995) (en banc).

Facts: The Kinneys (D) hosted a bible study meeting at their home. The sessions were sponsored by the Northwest Bible Church and participants signed up for the sessions at the church. The sessions were hosted at various times at the church and at the homes of other members. Carter (P) came to one of the morning sessions, slipped on a patch of ice in the driveway, and broke his leg. Kinney had shoveled the driveway the previous evening and was not aware that ice had formed overnight. D did not receive any financial or other benefit from P in connection with the bible study meeting.P sued D and the trial court granted D’s motion for summary judgment, holding that P was a licensee and that D did not have a duty to warn P of a dangerous condition of which D was not aware. P appealed.

Issue: What is the duty of a possessor to a licensee?Holding and Rule: The duty of a possessor to a licensee is to make safe only dangers of which the possessor is aware. Social guests are licensees. The court held that it was irrelevant that D had invited P because there was no material benefit motive and it was not extended to the public. D had not thrown open their premises to the public.Disposition: Affirmed.

Notes: A person is not an invitee merely because that person was invited. On exams, always classify each person in a fact pattern as an invitee, licensee, or trespasser and analyze the duty owed to each person.

Heins v. Webster County

Facts: Man goes to visit his daughter at the hospital she works at. He says he is there to arrange him playing the part of Santa Clause. He is about to go out to lunch and he opens the main entrance door for his wife and then he slips and falls on the ice and snow that accumulated by the door.Procedural History: The court found that he was a licensee not an invitee, because he went to see his daughter, and so they entered judgment in favor of the hospital. Issue: Should the court abolish the common law classification of licensee and invitee and require a duty of care to all nontresspassers?Holding: Yes.Reasoning:

A number of jurisdictions have abandoned this common law classification. MA and CA supreme courts have abandoned the distinction for the policy reason that a visitor’s status

should not determine the duty that a landowner owes him This case exemplifies the kind of frustration the common law distinction raises If Heins had been visiting a patient, he would be an invitee Because he was visiting daughter who worked there, he was a licensee The common law distinction should not be able to protect a landowner from liability when he would

otherwise be held to a standard of reasonable care There are 7 factors for determining whether a landowner has exercised reasonable care: they are in the

case (see below)

Dissent: It is not the court’s function to create liability where the law does not…in this case, a landowner owes a duty of care to an individual who may be engaging in activities on the property without the landowners knowledge or express permission.

Falzone v. Busch  

Facts: ∏ was in a parked car, and her husband was struck by a car. ∏ claimed that the car came so close to her that it put her in fear for her safety. As a result, she became ill and required medical attention. Trial court dismissed claim on the grounds that there had to be some physical impact before a L could recover for negligently induced fright.Issue: Can a ∏ recover for bodily injury or sickness caused by the defendant’s negligence even though the plaintiff was not physically struck?Holding: Yes.Reasoning: There were 3 reasons that courts gave for not giving recovery for physical impact unless it resulted from physical impact. The court no longer finds these reasons tenable:

1. it was thought that emotional injury was not a natural and proximate result of a negligent act1. this is better left to medical evidence2. the court has allowed recovery for physical ailments in which there was minor physical impact

and in cases in which there was willfully inflicted emotional harm3. even though the connection may be hard to find, causation is difficult to show in many other

types of cases2. courts concluded that no liability exists without physical impact

1. this court does not agree2. just because there might be fraudulent claims does not mean that the court should deny recovery

to someone who is injured3. courts feared that allowing recovery in these cases would result in a flood of litigation

1. there is no evidence that there is an excessive number of actions of this type2. if there was an excessive number of cases of this type, it should not be resolved by precluding

this claim but by expanding judicial machinery

Metro-North Commuter Railroad Company v. Buckley

-Common law is being used defensively; Falzone opens up; here, common law is invoked to deny negligent emotional distress claims unless they fit into the categories.-Exposure is not impact. Court was worried about liability in the future for those who have no symptoms;-Impact in this instance can’t equal exposure, as people are surrounded by carcinogens in many forms of their life; The courts would be slammed, and liability would be limitless.Facts:

Buckley, worked at railroad for three years. In 1997, he found out that asbestos exposure could lead to cancer, and Buckley feared that.

Buckley smoked a pack a day for 15 years. He was a pipefitter, and in removing insulation from pipes, he was covered often in

Asbestos. No evidence of asbestos related disease. Buckley’s possibility of cancer was raised by %1-5 according to one expert, and %1-3 by

testimony of another.o The railroad conceded negligence; but did not agree that Buckley suffered emotional

distress, nor that FELA covered non-impact injuries.

Procedure:-Buckley sued under FELA, and claimed that his exposure was evidence of negligent infliction of emotional damages, as well as his future medical payments. due to his increased risk of cancer.-The District Court ruled for the Railroad.-The Court of Appeals reversedIssue:-Under FELA, does an employee have an action for negligent infliction of emotional injury when no impact occurred, and the claim is for exposure to asbestos with no symptoms being present?Holding:- No. Buckley cannot make a claim for exposure when he has not contracted the disease or shown physical or mental distress or injury from the exposure. Reasoning:-The court begins by analyzing Gottshall, which it follows in its decision:-The common law “zone of Danger” test p.275

-Simple physical contact with exposure and no symptoms or contracting of disease does not equal physical impact. P.275

-The court agrees with all of the Gottshall criteria and law on p.275;-1.Zone of Danger, 2. The language narrows the scope of distress claims, 3. Common law only allows for symptom based recovery, and 4. Policy claims made by Gottshall are accurate. P.275-The policy reasons are analyzed individually on p.276:

o -1.The difficulty in separating true claims from trivial, 2. The threat of unlimited liability, and 3. The crushing burden argument or “flood” of cases. P.276

-The court agrees with and elaborates on each prong. P.277-The plaintiff argues for fact-specific analysis of his case, and the court explains that the common law has evolved to prevent this.-The courts have established categories which hold these types of cases. If your claim does not involve physical symptoms of contract of disease, then you do not need an analysis of facts, as the law doesn’t allow for recovery.-Only impact possible would be the inhalation of asbestos fibers; exposure would be considered the impact. Dissent:-Ginsburg concurs, but dissents in part; She agrees with the courts decision, but disagrees with the reasoning: p.278-She argues that Buckley never proved that he suffered emotional distress from the knowledge of his asbestos exposure. He never sought counseling, and Buckley’s claim fails as a matter of law.Notes and Questions:

1. The court determines categories to be more consistent? There can be no precedent if every case is decided individually. These categories reflect public policy which allows for the injured to be made whole again or because of the high likelihood of litigation anyway. B.) The two courts differ in their perception of public policy: Falzone holds that fear of flooding should not deter a plaintiff’s right to file. As well, the court held that the courts are set up to filter out the frivolous claims on a fact-to fact basis. The Buckley court is the opposite. They hold that it would flood the courts to allow exposure cases to be tried. As well, it is very difficult to determine factual cases. Similarly, the court holds that categories are set up to keep judges and courts from having to case-by-case determine these claims.

2. Falzone did apply a ‘zone of danger’ test accurately and implicitly. The argument that gradual exposure and immediate harm are different is very convincing. Fear caused by long-term exposure is not of the caliber that immediate risk fear is. If the exposure was sudden, it would be an immediate risk, like getting pricked by a needle with AIDS on it. This would provide a case. An asthma attack could prompt a more physical argument. You could argue that an extreme asthma attack could cause fear for ones life, though if one had asthma for years leading up to the event, it would be a harder sell, as one with asthma knows the symptoms and knows an asthma attack probably won’t kill you.

3. Buckley and Ayers have different results by product of the widespread asbestos litigation possibilities. If there were not so many millions of people affected, the outcomes could have been different. However, policy concerns aside, the nature of allowing someone to collect with no symptoms and for only a possibility of a future occurrence, the court might have found the same way, irrespective of the possible volume of cases.

4. That is a reasonable concern, one which Falzone would have rejected. There is a possibility that some kind of leveling effect or cap would be put on recovery if everyone ever exposed to asbestos could seek recovery regardless of their circumstances. Juries would not take the cases as seriously, and those who genuinely had a claim would be marginalized. On the contrary though, could one sue for emotional distress without symptoms, then when they contract the disease, sue again for having the disease?

5. The Potter court gave criteria for establishing the effect of exposure and the quantifiability that must occur in order to recover. A serious fear cannot be the only fact examined, because the reasonableness of the fear must come into play. If an irrational fear could establish a case, anyone could sue for any fear their insanity could conjure-

G ammon v. Osteopathic Hospital of Maine,   534 A.2d 1282 (Maine 1987)

Facts: When his father died at a hospital, ∏ made arrangements for the funeral home to make arrangements. ∏ opened a bag that was supposedly filled with his father’s personal effects but saw a bloodied severed leg in the bag. He suffered an immediate traumatic reaction. He began to have nightmares and his relationship with his family took a turn for the worse. After several months his emotional state improved, but he still had nightmares. He never sought treatment and he did not present medical evidence at trial.

Procedural History: The trial court granted a directed verdict on the plaintiff’s negligence claim for severe emotional distress.

Issue: May a ∏ recover for emotional or psychic injuries negligently inflicted by the defendant without any evidence of physical injury?

Holding: Yes.

Reasoning:

A defendant may be liable for any foreseeable emotional or psychic harms he negligently causes A person’s psychic wellbeing is as much entitled to legal protection as his physical wellbeing In the past, courts have limited recovery for emotional harms to certain categories of cases, usually

involving physical harm In cases with no physical injury, the court required a showing of

o Physical impacto Objective manifestationo Underlying or accompanying torto Or special circumstances

The court finds that these limitations are arbitrary and should not bar the ∏’s recovery These are artificial devices employed by courts to protect against fraudulent claims and undue burden on

the defendant

This court thinks that the trial process is well suited to protect against fraudulent claims Furthermore, the concept of foreseeability imposes an adequate limit on the defendant’s liability A defendant is bound to foresee emotional harm only when such harm reasonably could be expected to

befall the ordinary sensitive person The high probability that a person will suffer emotional harm from the mishandling of a family

member’s corpse should allay any fears of fraudulent claims