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Torts - S11

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American Motorcycle Association v. Superior Ct. 578 P.2d 899 (Cal. 1978)
Even though Comparative Fault apportions fault for liability purposes, each defendant is still liable under Joint and Several Liability for payment of all damages sustained by a Plaintiff. The defendant must seek contribution from any co-defendants.
Board of County Comn'rs of Teton County v. Bassett 8 p.3d 1079 (Wyo. 2000)
A statute indicating that all individuals who are "in any measure negligent" includes individuals committing intentional torts and therefore such individuals should be included for allocation of fault purposes even if the action is primarily one for negligence.

In an action to recover for damages resulting from Officers' failure to warn P of high speed chase and roadblock, the Officers' negligence could be compared with the intentional misconduct of the fleeing suspect for comparative fault purposes.
Boyle v. Revici 961 F.2d 1060 (1992)
Express assumption of risk, which is a total bar to recovery, results from agreement in advance that defendant need not use reasonable care for the benefit of plaintiff and would not be liable for the consequence of conduct that would otherwise be negligent. This assumption does not need to be in writing.
Tunkl v. Regents of University of California 383 P.2d 441 (1963)
An express assumption of risk required in order to receive medical treatment is by definition compulsory, involuntary, against public policy, and therefore invalid.
Moore v. Hartley Motors 36 P.3d 628 (Alaska 2001)
An express assumption of risk clause that P assumes the liability of any inherent risks in the participation of an ATV course does not preclude recovery for negligent acts by defendant in making the course more dangerous than it should have been thereby injuring P.
Doser v. Interstate Power Co. 173 N.W.2d 556 (Iowa 1970)
The Standard of Care for Common Carriers is a high duty of care (just short of insuring safety) and therefore a Plaintiff must merely show that he or she was injured while on the common carrier and the burden rests on the Defendant to prove that it wasn't negligent.
Gladon v. Greater Cleveland Regional Transit Authority 662 N.E.2d 287 (Ohio 1996)
The standard of care for a landowner to an individual who is trespassing on an area of property that he or she may otherwise be an invitee on is to avoid willful/wanton/reckless conduct until the danger to P is discovered by the Landowner or facts exist which should make landowner aware of the danger to P at which time the duty is converted into a duty to act reasonably.
Bennett v. Stanley 748 N.E.2d 41 (Ohio 2001)
Court sets forth the Attractive Nuisance Doctrine. In case where child drowns in dilapidated and rundown pool, the landowner has a duty of reasonable care despite the fact that the child was a trespasser because (1) the trespass by children is foreseeable, (2) The landowner knows or should know of the danger and realizes or should realize it involves an unreasonable risk of death or serious harm, and (3) Children b/c of youth do not discover the condition or realize the risk.
O'Sullivan v. Shaw 726 N.E.2d 951 (Mass. 2000)
Comparative Fault does not change the duties of a landowner for Open and Obvious dangers. A landowner has no duty to warn of Open and Obvious dangers.
Rowland v. Christian 443 P.2d 562 (Cal. 1968)
Abolition of categories. There is now a reasonable standard of care for Landowners regardless of the status of the injured person. The standard applies to all reasonably foreseeable users.
Scurti v. City of New York 354 N.E.2d 794 (N.Y. 1976)
The previous categories of invitee, trespasser and licensee are no longer determinative, they are merely factors to be considered in establishing whether the presence of an individual on the property is reasonably foreseeable.
Pagelsdorf v. Safeco Insurance Co. 284 N.W.2d 55 (Wis. 1979)
Court abandons general rule of non-liability of a Landlord for injuries to 3rd persons and instead adopts a duty to exercise ordinary care by LL in maintenance of premises.
Yania v. Bigan 155 A.2d 343 (Pa. 1959)
An individual is only liable when they have affirmatively acted in some fashion to establish a duty. There is no liability for nonfeasance.
Wakulich v. Mraz 751 N.E.2d 1 (Ill. App. Ct. 2001)
Where a party begins to act for the benefit of another person by rendering aid, they assume a duty to care for that person and may be liable if they are negligent in failing to reasonably safeguard for their safety.
Farwell v. Keaton 240 N.W.2d 217 (Mich. 1976)
Companions on a social venture have an implicit understanding that one will render assistance to the other when he or she is in peril if he can do so without endangering himself. Reasonable duty of care required even if no affirmative action. The relationship of the parties gives rise to the duty.
Krieg v. Massey
Even if a party assumes a duty by acting, as long as the party does not leave the person in a worse position than if he had not acted at all, no duty exists.
Thorne v. Deas 4 Johns. (N.Y.) 84 (1809) - Pg. 458
Promise to purchase insurance. One who undertakes to do an act for another without reward, is not answerable for omitting to act and is only responsible when he attempts to do it and does it amiss. Nonfeasance.
Grimes v. Kennedy Krieger Institute, Inc. 782 A.2d 807 (Md. 2001)
K to perform research can establish a "special relationship" between the human subject and the researcher giving rise to duties, out of the breach of which negligence actions may arise.
Winterbottom v. Wright 10 M. & W. 109 (1842)
No liability existed for defendant's failure to keep coaches in good repair when P, a third party, was injured. Common Law rule that a defendant does not owe any duty under a K to third parties even if they are foreseeable or intended beneficiaries.
H.R. Moch Co. v. Rensselaer Water Co. 159 N.E. 896 (N.Y. 1928)
3rd Party cannot sue water company for failure to provide adequate water to the city under K with city during fire. The duty of a party under a K to third persons may be limited by the reasonable expectations of the parties under the K.
Palka v. Servicemaster Management Services Corp. 634 N.E.2d 189 (N.Y. 1994)
A duty to 3rd Parties can arise under a K when it is within the reasonable expectations of the parties, there exists a relationship between one of the parties and a finite group of people, and the K deals with the outsourcing of a duty of a particular safety function designed to protect persons like P.
Florence v. Goldberg 375 N.E.2d 763 (N.Y. 1978)
Mother walks child to school everyday for 2 weeks and sees crossing guard stationed there by city police. Lets kid walk to school alone because relied on guard. Guy called in sick, city didn't replace, and kid was hit by car. K? No express K, but an implied promise. Court finds a duty based on 1)promise and 2) reliance on promise. There is a duty when there is a promise to protect a special class plus reliance on the promise. If mom hadn't relied, no liability. Narrow duty that is circumscribed by protection D promised through action.
Kircher v. City of Jamestown 543 N.E.2d 443 (N.Y. 1989)
Plaintiff was accosted and forced into a car. Eyewitnesses followed and wrote down the license plate number and gave it to a Police Officer who told them that they he would call it in. He never did. The woman was repeatedly raped and her larynx was crushed. The court refused to find liability holding that the officer was under no duty to the THIRD PARTY (claimant). Courts don't want to hold cops liable b/c of scope of liability and don't want to allocate police resources.
Posecai v. Wal-Mart Stores, Inc. 752 So.2d 762 (La. 1999)
P is robbed at gunpoint of 19K worth of jewelry in the parking lot of a Sam's Club. The court in trying to determine whether or not Sam's owed a duty to its patrons examines several approaches to resolving the foreseeability issue. It chooses a balancing test and determines that the limited number of predatory offenses on the premises and the fact that Sam's operates only during daylight hours indicate that Sam's did not possess the requisite degree of foreseeability to impose a duty.
Marquay v. Eno 662 A.2d 272 (N.H. 1995)
Plaintiffs were female students at the Mascoma Valley Regional School District who allege that they were exploited, harassed, assaulted, and sexually abused by one or more employees of the school district.
Young v. Salt Lake City School Dist. 52 P.3d 1230 (Utah 2002)
Child was struck in crosswalk after school and sued saying school should have provided crossing guard, lights, etc.
Dudley v. Offender Aid & Restoration of Richmond 401 S.E.2d 878 (Va. 1991)
D was a halfway house that took in Spencer, a violent felon who repeatedly broke the rules. There was virtually no security. Spencer did not return one evening, and broke into a nearby apartment and raped and killed Davis
Tarasoff v. Regents of University of California 551 P.2d 334 (1976)
Plaintiffs were the parents of a university student killed after the killer confided his intent to a school psychologist at UC Berkeley. The court held that where a special relationship exists and one party has knowledge that the other intends to commit physical harm to a third party, there is a duty to protect against that harm and to warn the intended victim.
Eisel v. Board of Education of Montgomery County (1991)
School counselor was told of a planned suicide, and confronted the girl who denied. She later died in a murder-suicide pact. The court held that the counselor had a duty to protect her and her denial was not enough to make that duty go away.
Brigance v. Velvet Dove Restaurant, Inc. (1986)
Bar served a patron who was already drunk, who later caused a one-car accident in which Plaintiff Shawn was injured. The trial court dismissed the claim, but the Supreme Court of Oklahoma found that the traditional common law approach to tavern owner's non-liability was antiquated and imposed a general duty of care.
Boyle v. Revici (1992)
Woman diagnosed with cancer sought multiple second opinions all of which suggested surgery. Defendant purported to treat cancer with a new treatment, but warned that it was not FDA approved and that there was no guarantee. She chose this course of action and died not long after.
Crews v. Hollenbach
Excavation crew hits gas line, causing leak. P worked for gas company and during the containment, a spark ignited the gas and he was injured in an explosion.
Sunday v. Stratton Corp (1978)
Skier crashes into a bush on novice run, which was covered/obscured by snow. D claims assumption of risk relieves its duty. Court found risk was outside the primary assumption or risk and that duty was not relieved.
Turcotte v Fell (1986)
P was a jockey who was thrown from his horse when D cut him off. Here the D did violate a rule but it was not outside a risk that was assumed. The violation of a rule itself does not make act reckless.
Mitchell v. Rochester Railway (1896)
Mitchell was pregnant and upon stepping off of a streetcar found herself in the oncoming path of a team of horses. The horses were stopped just short of trampling her, but she suffered real fright and miscarried. The court, following the impact rule, found that since there was no actual injury there could be no recovery under the emotional distress claim.
Burgess v. Superior Court (1992)
P entered the hospital to deliver her child, but D's negligence resulted in the child suffering permanent brain damage. The court held that the "Thing Rule" did not apply because there was a "Special Relationship" between D and P and there was a direct cause of negligence.
Grube v. Union Pacific RR (1994)
P was a conductor on D's train when it hit an automobile stalled on the tracks, killing the driver. P witnessed the impact, saw the face of the driver, and afterwards went to the driver's aid and witnesses his death. Recovery was barred because while P was in the Zone of Danger, he did not fear for his own safety, but rather his emotional distress was from his fear for the safety of the driver of the automobile.
Dillon v. Legg (1968)
Mother witnessed her child get run over. The court held that the Defendant owed a duty not just to the injured person but to those who might FORESEEABLY suffer harm because of the injury.
Thing v. La Chusa (1989)
Mother hears that her son has been hit by a car rushes to the scene to find her bloody and unconscious child laying in the road and believed him to be dead. The court found the Dillon Test to leave too much room for an unlimited expansion of liability and articulated a new test.
Camper v. Minor
Cement truck driver hits teenage girl's car when she negligently pulled out in front of him. He claims NIED after seeing her dead body. The Tennessee court held that they would 1) no longer follow the physical manifestation rule, and 2) that NIED claims would be analyzed on a case by case basis under the general negligence approach, but that 3) the claimed injury required support by EXPERT MEDICAL OR SCIENTIFIC PROOF.
Potter v. Firestone Tire
D operated a tire plant and put hazardous waste into a class II landfill instead of class I where it belonged. Class IIs seep into groundwater. Ps sue for NIED b/c fearing cancer. Court adopts following standard.
Boucher v. Dixie Medical (1992)
Child was brought into hospital for a hand injury and ended up a quadriplegic vegetable. Parents sued both for NIED and loss of child's consortium. The trial court dismissed the NIED claim b/c parents were not in Zone of Danger, and then dismissed LOC claim because it would amount to a double recovery since the cost of care for the boy would be recoverable under his own claim.
Riviello v. Waldren (1979)
Cook at the Pot Belly Pub was playing with his knife, showing off for a customer, when the knife slipped and poked the customer's eye out. Employer argued that this was beyond the scope of employment. The court held that he was liable.
Fruit v. Schreiner (1972)
Insurance salesman at a convention went out to meet prospective clients at a bar. They were not there, and on his way back to the convention center he lost control of his car and struck P. The court found his company vicariously liable because he was within the scope of his employment because his presence at the convention was work related and his visit to the bar was work related.
Faul v. Jelco (1979)
Construction worker who was paid an hourly wage that included a bump for the job being in the middle of nowhere, but no separate compensation for his travel. Trial court granted summary judgment for employer based on going and coming rule. Court of appeals affirmed.
Edgewater Motels, Inc v. Gatzke (1979)
Gatzke worked for Walgreens in Minnesota and lived in the Edgewater as part of his oversight of restaurants being. He was on call 24 hours a day for dealing with issues arising from the restaurants. His hotel room, as well as a fair amount of the hotel, burned in a fire that was caused by a cigarette which he had been smoking while filling out his expense report. The court found that the accident occurred while Gatzke was doing the employer's work.
Lisa M. v. Henry Mayo Newhall Hospital (1995)
P, pregnant, was injured in a fall and brought to the hospital. During her ultrasound, the technician improperly used the vaginal wand and used his fingers for probing. P discovered later this was not necessary and sued. The court held that the technician was not within the scope of his employment when committing the intentional tort of battery. There was no employer liability because the intentional tort was not one that arose from the emotions that the employment creates.
Mary M v. City of LA
Police officer arrests woman who is apparently on drugs and he offers to drive her home. He rapes her. Police dept. held liable b/c assault was a generally foreseeable consequence of his position.
District of Columbia v. Hampton (1995)
DC Dept. of Human Services (DHS) removed 2 year old Mykeeda Hampton from her home and placed her in foster care. While in foster care, the child was abused, and was then later beaten to death by the foster care mother's son. The mother brought suit against DHS under vicarious liability. The court held that the foster care program engaged the use of independent contractors and had no liability.
Boroughs v. Joiner
P claims that D engaged the services of a crop duster who used a pesticide more dangerous than DDT. The trial court granted motion for summary judgment on the ground that the crop duster was an independent contractor. The Supreme Court of Alabama follows the Restatement 2nd of Torts - One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to others..."
Weaver v. Ward (King's Bench 1616)
In military and were fighting. Accidentally D shoots the P. Court holds that the D is liable simply b/c he shot him, regardless of whether he was at fault or not. Test was still for trespass - was there a direct injury.
Brown v. Kendall (1850)
Articulated for the first time the principles of negligence, which was that for a defendant to be liable in tort there must be FAULT. - D tries to separate some dogs with a stick and accidentally hits the P in the eye. D did not intent to hit the P, but CL would say that he was still liable. But here court says that in order to recover the baseline rule is that a D must be at fault. Say that ordinary care will vary w/ the circumstances of the case, but in general means the kind and degree of care that a prudent man would use.
Rylands v. Fletcher
P operated a mine and D operated a mill nearby. D builds a pond over abandoned mine shafts and when the pond was filled with water, it flooded the mine of the P. P claimed strict liability. D says that they don't have this anymore, no fault so no liability. Lower court agrees, but exchequer reverses.
Sullivan v. Dunham
Girl was walking on a highway, and D was blasting stumps. P was killed by a stump that flew. Court found for the P saying that the D was strictly liable. They said that this was trespass to person b/c there was a direct invasion of person. American courts had not adopted Rylands.
Exner v Sherman Power Construction Co (1931)
Sullivan required a direct injury from the blasting, but the blasting could be very violent and cause much indirect harm. Here, the Plaintiff was less than 1000 feet from where the blasting was being done and was thrown out of her bed by the force of the blasting. The court broadens Rylands to indirect injury.
MacPherson v. Buick Motor (1916)
(wheel collapses). The wheel collapses on the car, throwing the driver out. Buick invokes the privity rule. Cardozo follows the rationale of Winchester holding that 'if the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is a thing of danger...If the manufacturer is negligent where danger is to be foreseen, liability will follow. This was a negligence cause allowed in products setting (Remember Winterbottom).
Baxter v. Ford Motor (1932)
P brought suit against Ford for breach of express warranty for promoting its windshield as Shatterproof. The windshield shattered and caused P the loss of his eye. D claimed there was no contract between the two. The court agreed. On appeal, the court overturned and said that they weren't going to accept the notion that there is no liability because of a lack of privity because Ford put the car into the stream of commerce and used the warranty as a tool for getting consumers.
Henningsen v. Bloomfield Motors (1960)
P buys a car for his wife, and signs a K that says no warranties except replacement of defective parts. Then the car makes a sharp right hand turn and runs into a wall. After Ford, car manufacturers stopped having such warranties; the only warranty in the K was that D would replace defective parts only. The court says that there is an implied warranty. But the K expressly disclaims any liability. The court found that the disclaimer was unconscionable. Court held that there was an implied warranty that ran to ultimate purchaser from manufacturer. Moving away from Contract Law to Tort Law.
Moorman Manufacturing v. National Tank Co. (1982)
Plaintiff purchased a grain tank from Defendant. After 10 years of use, a crack developed in one of the steel plates on the tank. P sued under a theory of strict product liability.
Lee v. Crookston Coca-Cola Bottling Co. (1971)
Coke bottle exploded in a waitress' hand causing serious injury. Expert testimony indicated that there are three fundamental causes of bottle failure: Thermo-shock, internal pressure, and external force. The court looked at the evidence and found that Thermo-shock was not the cause; nothing indicated external force, which left internal pressure. The only way this would result in the explosion was through a design defect.
Mexicali Rose v. Superior Court (1992)
Customer ordered a chicken enchilada, which had a 1" bone in it and was injured when he swallowed the bone. The court concluded that the bone was natural to the preparation of the food, and thus the product wasn't defective.
Jackson v. Nestle-Beich, Inc. (1992)
P broke a tooth eating a chocolate covered pecan-caramel candy which had a hard pecan shell embedded. Court applies the consumer expectation rule in RESPONSE TO the unreasonableness of the natural/non-natural distinction.
Leichtamer v. American Motors Corp. (1981)
Driver took a Jeep on an off-road course and flipped over, back to front. The roll bar was designed to take weight on a side rollover, but on a forward rollover it collapsed causing a death and severe injury to another P.
Soule v. GMC (CA)
Injured when car hits her over her left front wheel, court says no expectation of how product will work in this particular circumstance.
Knitz v. Minster Machine Co. (1982)
D manufactured a press that delivers 60 tons of force, originally had to be activated w/2 hands. But P's co. purchased w/foot tripping device, and P's foot accidentally tripped while fingers in way. Court found consumer expectation test failed here, so keeps this test, but adds risk utility test.
Barker v. Lull Engineering (1978)
P was injured when he jumped off industrial loader that was vibrating and lumber fell on him. Court shifts burden to D, which is very different than negligence case, where P has to prove D's conduct unreasonable.
Campbell v. General Motors Corp. (1982)
P is a 62 year old woman riding the city bus and is thrown from her seat when the bus came to a sharp stop. All of the other seats had grab bars in front of them, except the front seat (in which she was sitting). Citing Barker, the court finds the second test is met and she prevails.
Honda of America Mfg., Inc. v Norman
P accidentally backed down a boat ramp into water and drowned b/c she could not release automatic seat belt. Ps offered 3 alternatives, but couldn't meet burden that benefits of proposed design outweigh burden.
Carruth v. Pittway Corp. (1994)
7 family members died in a fire the day after the father had installed a fire-detector. The placement of the detector was in a "dead air" zone, as described in small print in a multi-page pamphlet. The court held that the warning was hidden and not sufficiently obvious, so as to not be a warning at all.
Liriano v. Hobart Corp. (1999)
P was injured when hand got caught in meat grinder manufactured by D. It was sold w/ a safety guard but the guard was removed by Liriano's employer. The machine bore no warning that it should be operated only w/safety guard. Problem: Obvious danger: Don't need to warn about these; product not defective for lack of warning. But the court focuses on the second purpose of the warning - to make P aware of alternatives, and does not allow obvious danger argument to prevail.
Bowling v. Heil (1987)
Heil was the manufacturer of a dump truck. Bowling borrowed the truck and was using it to dump gravel. The lift got stuck after dumping the gravel. Bowling leaned underneath the truck to see what the problem was and hit the control lever. The bed quickly slammed down, killing him immediately.
Safeway Stores v. Nest Kart
Rita was injured by a shopping cart in a Safeway parking lot. Court found Safeway was neg and S/L -responsible for 80% of damage and Nest-kart (manufacturer) was only S/L- 20% of damage. S wants common law pro rata apportionment and seeks contribution from N to make 50/50- the traditional rule for contribution (pro rata). S's theory is that you cannot compare negligence to SL, so logically the liability should be split. Court says no - it is possible for jury to compare b/w neg. and S/L using comp. fault, but gives no instructions.
Hughes v. Magic Chef (1980)
P suffered injuries from an explosion when after replacing a propane tank on the stove; an unlit pilot light leaked gas and thus caused an explosion. D claimed misuse of product and assumption of risk.
Stahlecker v. Ford Motor Co.
Classic unforeseeability. P murdered by 3rd party when she is stranded b/c tires tore apart. Product may have been defective, but no prox. cause.
Newmark v. Gimbel's Inc. (1969)
P goes in to see her stylist for a permanent. When the product was applied she felt burning, later her forehead blistered and her hair fell out. There was a warning on the product.P sued the salon who was in the chain of distribution. D argues that they are supplying a service, not a product. But P did pay for the product by paying for the service. It matters whether the person is doing a service as opposed to a transaction b/c service providers (like doctors, lawyers) are not S/L, but sellers of products are.
NY Times Co. v Sullivan
NY times published ad asking for donations to help defend MLK - mentioned terror, arrests, etc. Commissioner claims he is defamed even though not named b/c people would know he was responsible. Court has concerns over 1st amendment rights, so rearranges cause of action.
Gertz v. Robert Welch, Inc
Lawyer is accused of being a Leninist and Communist-in D's paper. Here we have a private figure. Difference is the nature of the P, but still media D and issue of public concern. Public official can respond to attacks more easily, so should std. be as hard for this P, who court says is not a public figure?
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc
D. supplied a confidential credit rating report about P to 5 subscribers that was negligently mis-transcribed and had false info regarding bankruptcy petition filed by P. Two private parties involved, so NY Times standard not applied (1st amendment interest weak). So, presumed and punitive damages are recoverable.
Solano v. Playgirl
P. was shown on cover of Playgirl w/words giving indication that he was in the magazine unclothed.
Derry v. Peek
Ds selling shares of stock said they had the right to use steam or mechanical power, but did not actually have this right. Corp. fails and Ps lose $. Ds not liable b/c honestly believed to be true.
Ultramares Corp. v. Touche Niven & Co
Ds accountants did audit and knew that company would use info to distribute for purpose of getting loan. P loan co. relied on this audit and loaned $ to co. and lost so sued accountants. Cardozo thinks Moch and worries about too much liability (indeterminate amount/time/class) for Ps not in privity w/D (as is the case here). No problem in holding Ds liable if fraud, but here only negligence. Ps are probably foreseeable here, but too many.
Gauerke v. Rozga
P buys land thinking that its 5 ½ acres, but its actually less than 3. The agent just passed the information along. Should agent be responsible?