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Learning Resources
This page contains the Learning Resources for this week.
Media about Tort Law
Readings
Course Text: Currier, K.A., Eimermann, T.E. (2016). The study
of law: A critical thinking approach (4th ed.). New York:
Wolters Kluwer.
Chapter 7, "Torts"
WAL_PSPA3010_02_
A_EN-CC.mp4
The Study of Law
Currier, K.A., Eimermann, T.E. (2016). The study of law: A
critical thinking approach (4th ed. .

New York: Wolters Kluwer
-
Aspen College Series
The Study of L
A Critical Thinking Approa
Fourth Edition
Katherine A. Currier • Thomas E. Eimermann
®Wolters Kluwer
Torts
The risk reasonably to be perceived defines
the duty to be obeyed.
Justice Benjamin Cardozo
ER OBJECTIVES
:: · g this chapter, you should be able to:
"":" xplain how intentional torts differ from negligence and
strict liability
rtS •
...ist: the elements of the prima facie case and common defenses
for the

- rtS of battery, false imprisonment, and defamation.
_...__ ply the elements of negligence to a fact scenario.
escribe the history and development of product liability law.
~lain the function of compensatory, punitive, and nominal
damages.
UCTION
_ - occur when someone injures you, slanders your reputation,
or dam-
- roperty. A tort is defined as a private wrong (other than a
breach of
_._ __ -_: · which a person or property is harmed because of
another's failure to
-a legal duty. In most instances this legal duty is an obligation
to refrain
207
• 208 Chapter 7: Torts
Restatement of the law
of Torts, Second
An authoritative
secondary source,
written by a group
of legal scholars,
summarizing the
existing common law, as
well as suggesting what
the law should be.

from taking actions that harm others. Occasionally, a duty will
consist of -
affirmative obligation to act in order to protect others.
A tort is considered to be a "private wrong," as opposed to
criminal -
which are seen as "public wrongs." Therefore, while the state
prosecutes c ·
the individual harmed must pursue a tort action. The end results
of a cr·
action and a civil tort suit also differ: A finding of guilt in a
criminal action -
result in a fine paid to the state or imprisonment, while a
finding of liability·-
tort action usually leads to a damage award to the harmed party.
However, as
discussed in Chapter 4 because both criminal acts and torts can
result in ha.n::-:
a person or property, sometimes the same set of facts will give
rise to both a :
action and a criminal action.
Tort actions must also be distinguished from contract actions. In
a :
action the legal duties are established by the courts through the
common law
more recently also by statutory modifications of the common
law. In con
contract actions are based on the legal duties the parties
established in t
contract. A further difference between a contract action and a
tort action li~
the remedy sought. In a contract action the purpose of the
lawsuit is to give
injured party the benefit of the bargain. In a tort action the
purpose is to

pensate the plaintiff for any losses suffered. For example,
assume you pure
an automobile with defective brakes. Because of the defect you
are unab:e ·
stop at a red light and are in a minor accident. The purpose of a
breach of
tract action would be to "get the benefit of your bargain"- that
is, a car
out defective brakes. The purpose of a tort action would be to
fully compe
you for any harm to yourself or the car, including your medical
bills, lost
from work, and pain and suffering. As this example suggests, at
times one
of facts can give rise to both a breach of contract action and a
tort action. c:-
example, if a manufacturer intentionally lies about a product he
is selling and -
buyer relies on that lie to her detriment, the buyer might be able
to sue for
breach of contract (thereby invalidating the sale) and fraud
(thereby recove~
for damages caused by the product).
Tort law has ancient roots, and tort rules have been created by
the co
on a case-by-case basis. Therefore, looking to precedent for
analogous situa ·
plays a large role in any analysis of a tort problem. In addition,
the courts :....
quently look to an authoritative secondary source, the
Restatement of the
of Torts, Second. This Restatement was drafted by a group of
legal scholars
order to summarize the existing common-law rules in a set of
black letter

ciples. At times, instead of simply "restating" the law, the
drafters also incl
their vision of what tort law should become. This is most
notable in the ar
products liability. Although the Restatement is a secondary
source and is th
fore only persuasive authority, you will frequently see courts
citing to it and
formally adopting some of its provisions.
In spite of its ancient common-law roots, tort law has never
been sta
One area of tort law that is undergoing rapid change is that
involving in
ries to participants and bystanders at sporting events. Consider
the fo il
ing and how what started out as an afternoon of fun ended up
being a
of tragedy . .
Dennis Carrai hosted a gathering of family
- friends at his home. Among the guests was
...aria Judge. Several guests, including Maria,
ere seated on the unenclosed rear porch of
-- .. house. At some point, Dennis shouted "who
::: ts to play softball," while handing out gloves,
all, and a metal bat that he had retrieved from
- garage. The area available for the field was
· e small; the "third base line" was approxi-
-=-ely 15 feet from the house, running parallel to
e side of the porch. Maria was sitting in a chair

- the porch, with her back to the game.
Dennis admonished the batters to "bunt" or
swing down on the ball, and not to take full swings,
to reduce the distance a batted ball might travel.
Nonetheless, a batted ball flew in the direction
of the house, landing on the porch roof. One of
the guests laughed, commenting to Dennis that he
hoped his homeowner's insurance policy premium
was paid, because the ball narrowly missed hitting
a skylight on the porch roof. The game continued
and a short time later, one of the players hit a foul
line drive toward the porch, where it struck Maria
on the back of her head, causing her serious injury.
As you read this chapter, think about:
whether Dennis had a duty to stop the game once he should have
real-
ized the danger of balls flying towards the house;
what role Maria played in her own injury; and
the consequences for backyard sports if a court were to find
Dennis lia-
ble for Maria's injury.
While tort law is still predominately court-created law,
legislatures are play-
- increasingly active role. For example, both Congress and state
legislatures
= enacted "tort reform" statutes, with the purpose of modifying
some of the
ed abuses of the tort system. One example is legislation to place
limits on
ount of damages that can be awarded in certain types of tort

cases. Such
-eform measures have even been included in the national
platforms of the
- political parties.
- orts have traditionally been classified into three major
categories: inten-
acts, negligence, and strict liability. See Figure 7-1. In any one
of these
areas, the person who commits the tort is known as the
tortfeasor.
U en people intentionally seek to violate a duty toward others,
their pur-
conduct is classified as an intentional tort. Those who commit
inten-
-orts are subject to punitive in addition to compensatory
damages. If John
onally drives his car into Jill's car, damaging her car and
injuring Jill,
as committed an intentional tort. As we will see later in this
chapter,
: motive (reason) for hitting Jill's car is irrelevant. All that
matters is that
- ded to do so.
n en the harm occurs as a result of a careless act done with no
conscious
HIGH
Intentional acts
MEDIUM
Negligent acts

LOW
Strict liability
NONE
No liability
- :o injure anyone, the act is classified as negligence. Negligent
actors are sub- Figure 7-1 Degrees of
Fau lt - compensatory but not to punitive damages. If the reason
John's car struck
Jill's was not because he had intended to do so but because he
had taken his e~
off the road to adjust his radio, John's behavior may be
classified as negligent.
There are times when for policy reasons the defendant is held
responsi;:;.~
even though the defendant did not act negligently nor
intentionally to ha.'"i;;
the plaintiff. These are classified as strict liability torts. Strict
liability is usua:
limited to situations involving an ultrahazardous activity, such
as dynamiting, --
the manufacture or sale of a potentially dangerous product. For
example, if -
reason John ran into Jill's car was because his brakes failed, the
car manufactur:
may be held strictly liable.
Finally, it is important to realize that the law does not provide
for co:::-

pensation for all injuries. There are true accidents, when either
no one is at fa·· -
or the fault rests solely with the person injured. In those
situations, the injur
party cannot recover damages.
A. INTENTIONAl TORTS
An intentional tort occurs whenever someone intends an action
that results
harm to a person's body, reputation, emotional well-being, or
property. Alm
any harm that you can imagine, if caused intentionally, can be
classified as --
intentional tort. In this section of the chapter we will discuss
just a few of~--
most common intentional torts. First, there are the torts that
cause harm •
a person's body, reputation, or emotional well-being: assault
and battery, fa.S
imprisonment, defamation, invasion of privacy, and intentional
infliction
emotional distress. Second, there are the torts that cause harm
to a persor:
property: trespass, trespass to personal property, and
conversion. Third, we
briefly discuss a variety of other torts, including false arrest,
malicious prostx..:;:-
tion, abuse of process, fraud, and business torts.
In order to prove that an intentional tort occurred, the plaintiff
must pro _
each of that tort's elements. The defendant then has the
opportunity to raise a;:;.
defenses. The primary defenses available in intentional tort
cases are conser;.-

self-defense, defense of third parties, and various types of
privilege.
As we will see, one set of facts can give rise to more than one
type of imer.-
tional tort. In addition, many intentional torts are also crimes.
Consider the fr:-
lowing fact scenario.
One day attorney John Bloom asked his
paralegal Sally Green to sit in on an initial cli-
ent interview. Mr. Bloom introduced Ms. Green
to the client, June Day, and explained to Mrs. Day
that Ms. Green is a paralegal. Mrs. Day told them
the following story.
Mrs. Day has been living with Mr. David Da.
for the past five years. While their marriage has
- er been a happy one, Mrs. Day never thought
= divorce until last night. Mr. Day came home
~ late from an adult co-ed softball game. Mrs.
a. said it was obvious that he had been drinking.
~.,ey soon got into a verbal fight. Among other
-- gs, Mr. Day yelled at Mrs. Day that he had told
- boss she had been skimming money from the
pany's petty cash drawer. Mrs. Day had never
e any such thing. He also told her that he had
=.:eived a call earlier in the day from the local has-
telling him that Mrs. Day's mother had been

- · tted following a massive heart attack. (Later
:s. Day found out that this was not true, but at
- " time she believed Mr. Day and became very
~. ) The fight escalated, and Mr. Day began
:.ring his baseball bat in front of Mrs. Day. Mrs.
a; said that she was not frightened, as Mr. Day
- never hit her, and she did not believe he would
A. Intentional Torts 211 •
do so then. In fact, she turned her back on him and
started to leave the room. He then yelled at her
and, before she could turn around, hit her on the
back of her arm with the bat, breaking her arm.
Mrs. Day then fled to the bathroom, locking the
door behind her. Mrs. Day remained in the bath-
room for over two hours until she felt it was safe to
leave. She found Mr. Day asleep on the living room
couch. She fled to a neighbor's, who drove her to
the hospital. The next morning Mrs. Day returned
home to find Mr. Day as well as her purse gone.
There was a message on the answering machine
from her boss saying that she was fired.
While Mrs. Day is contemplating divorce
proceedings, her more immediate concern is to
learn what actions she can take to compensate
her for her broken arm, emotional distress, miss-
ing purse, and lost job.
arm to a Person's Body, Reputation, or Emotional Well-Being
- : ;allowing torts will be discussed in this section: assault and
battery (harm

---eatened harm to a person's body), false imprisonment (a
wrongful deten-
. defamation (harm to a person's reputation), and invasion of
privacy and
~rentional infliction of emotional distress (harm to a person's
emotional
-neing).
a. Assault and Battery
_-n assault occurs when someone reasonably fears that he or
she is about to
~ a harmful or offensive physical contact. A battery is the
intentional harm-
~ offensive physical contact. While we usually think of assault
and battery
-e tort, in reality they are two torts. They can be present
together, as, for
- .le, when Tom first waves a fist in front of Sam's face and then
proceeds
- .:ach Sam in the nose. However, there can also be an assault
with no bat-
. henever there is the threat of a battery but no ensuing physical
contact.
- - ere can also be a battery with no assault, as, for example,
when the per-
"'mg attacked does not see the threat of physical contact before
it actually
1) The elements of assault and battery
-:-o prove an assault, the plaintiff must show that each of the

following ele-
occurred:
Assault
An intentional act that
creates a reasonable
apprehension of an
immediate harmful
or offensive physical
contact .
Battery
An intentional act
that creates a harmful
or offensive physical
contact.
Transferred intent
A legal fiction that if a
person directs a tortious
action toward A but
instead harms B, the
intent to act against A is
transferred to B.
1. an intentional act
2. that creates a reasonable apprehension of
3. an immediate harmful or offensive physical contact.
Notice the requirement in element 3 that the apprehension be of
an immediate
physical contact. A threat to go and get a gun is not an assault

because there is
no threat of an immediate contact.
To prove a battery, the plaintiff must show that each of the
following ele-
ments occurred:
2. that creates a harmful or offensive physical contact.
Notice that for both assault and battery the contact does not
have to actually
be physically painful. It simply must be harmful or offensive.
An unwanted kiss
from a stranger could qualify as an offensive contact.
Contact also includes contact with anything attached to the
person, such
as clothing. In the classic case of Fisher v. Carrousel Motor
Hotel, Inc., 1 the
court found that a battery had been committed when a hotel
employee grabbe
a plate from a customer. Also, the defendant need not actually
do the touching if
the defendant set the action in motion, such as by throwing a
rock or ordering
a dog to attack.
In discussing battery there are three important concepts to keep
in mind.
First, the intent involved must be the intent to perform the act,
not necessarily to
cause the plaintiff harm. Assume a boy, as a practical joke,
pulls out a chair jus:
as his friend is about to sit on it. The friend falls to the ground,
breaking his arm.

Even though the boy did not mean to hurt his friend, he is liable
for battery. He
intentionally did an act that caused physical injury. This
example also illustrates
the difference between intent, the desire to do an act, and
motive, the reason fo~
the act. The court is concerned with the intent (the boy's desire
to pull out the
chair) and not with his motive (his wish to play a practical
joke).
Second, usually defendants will be liable for any consequences
of theG-
actions, even if the consequences were unforeseeable. Often this
is phrased as
follows: "The defendant must take the plaintiff as the defendant
finds her." Fo:-
example, if the plaintiff has an "eggshell skull" and the
defendant merely taps th~
plaintiff's head lightly, the tap may seriously injure the
plaintiff. The defendant is
liable, ev.en if such a tap would not have harmed most people.
Third, assume John swung his fist, meaning to hit Bill.
However, Bill move-
aside and John hit Sara instead. John is liable to Sara for battery
under th=
theory of transferred intent.
The following case involves a friendly backyard touch football
game th;r
unfortunately ends in injury. While reading the case, decide for
yourself whethe:
you think the plaintiff should have been allowed to succeed on
her claim c:
battery.

1424 S.W.2d 627 (Tex. 1967).
Knight v. jewett
3 Cal. App. 4th 1022, 275 Cal. Rptr. 292 (1990)
ToDD, Acting P.J.
Kendra Knight appeals a summary judg-
ment granted in favor of Michael Jewett in her
wsuit against Jewett for ... assault and battery
stemming from a touch football game in which
she was injured ....
Facts
On January 25, 1987, Knight and several
other individuals, including Jewett, gathered at
:he Vista home of Ed McDaniels to observe the
uper Bowl football game. Knight and Jewett
were among those who decided to play a game of
-..oed touch football during half-time using a "pee-
wee" football often used by children. Apparently,
o explicit rules were written down or discussed
xfore the game, other than the requirement that
:o stop advancement of the player with the ball
~~ was necessary to touch that player above the
';";"aist with two hands. Knight and Jewett were on
different teams.

Previously, Knight had played touch football
and frequently watched football on television.
1-:night voluntarily participated in the Super Bowl
alf-time game. It was her understanding that this
=arne would not involve forceful pushing, hard
'tting or hard shoving during the game. She had
::ever observed anyone being injured in a touch
:ootball game before this incident.
About five to ten minutes after the game
::arted, Jewett ran into Knight during a play and
.2.....!rerward Knight asked Jewett not to play so
:-ough. Otherwise, she told him, she would stop
_laying.
On the next play, Knight suffered her inju-
:es, when she was knocked down by Jewett and
he stepped on the little finger of her right hand.
Kendra had three surgeries on the finger, but they
proved unsuccessful. The finger was amputated
during a fourth surgery.
According to Jewett, he had jumped up to
intercept a pass and as he came down he knocked
Knight over. When he landed, he stepped back
and onto Knight's hand.
According to Knight's version, her team-
mate, Andrea Starr, had caught the ball and was
proceeding up the field. Knight was headed in the
same direction, when Jewett, in pursuit of Starr,
came from behind Knight and knocked her down.

Knight put her arms out to break the fall and
Jewett ran over her, stepping on her hand. Jewett
continued to pursue Starr for another 10 to 15
feet before catching up with her and tagging her.
Starr said the tag was rough enough to cause her
to lose her balance and fall and twist her ankle.
Discussion
Inasmuch as this case reaches us on appeal
from a summary judgment in favor of Jewett, it is
only necessary for us to determine whether there
is any possibility Knight may be able to establish
her case.
A requisite element of assault and battery
is intent. Here, however, there is no evidence that
Jewett intended to injure Knight or commit a bat-
tery on her. Moreover, the record affirmatively
shows Knight does not believe Jewett had the
intent to step on her hand or injure her. 7· Without
the requisite intent, Knight cannot state a cause of
action for assault and battery.
Affirmed.
--:-he deposition of Kendra Knight was taken on October 19,
1988, and offered in support of the motion for summary
judgment. Ms.
·- "ght testified as fo llows
"Q. Do you believe that Mr. Jewett was trying to step on your
hand? Do you have any reason to believe he had any intention
hurt you?"
"A.No."

MooRE, C.J.
CASE DISCUSSION QUESTIONS
1. Did the court think that a battery had occurred? Why?
2. What role do you think Ms. Knight's deposition played in the
court's
reasoning?
3. Do you think the result would have been different if Ms.
Knight had
never watched football or played touch football prior to her
accident?
(2) The defenses to assault and battery
The first step in winning a tort claim is for the plaintiff to prove
each of
the elements of that tort. Then only if the plaintiff is able to do
so, the defendant
raises any defenses. The defenses that can be raised to an
assault or battery claim
are consent, self-defense, defense of others, and sometimes
defense of property.
Consent to a tortious act can sometimes be implied from the
nature of the
plaintiff's conduct. When one goes to a barber or hair stylist,
there is an implied
consent for that person to touch and cut the customer's hair.

Some types of con-
sent are implied by law, such as when a doctor administers
medical treatment
in an emergency. Because the court in Knight v. Jewett did not
think that Ms.
Knight had established a prima facie case for battery, it did not
consider whether
the defendant had any valid defenses. If the court in Knight had
thought Mr.
Jewett intentionally stepped on Ms. Knight, it next would have
discussed the
issue of whether she had consented to the battery. How do you
think the court
would have resolved that issue?
For self-defense and defense of others to be valid, the plaintiff
must rea-
sonably believe that a threat exists and then must use only as
much force as is
necessary to stop the battery. Self-defense, for example, could
be used as a valid
defense against a battery charge if the plaintiff had threatened
the defendant
with a knife and the defendant had defended himself with his
fists. However, if
the plaintiff was unarmed and struck the defendant with his
fists, it might not be
a valid self-defense for the defendant to stab the plaintiff with a
knife.
Perhaps one of the most controversial defenses is that of
defense of prop-
erty. The following case from Iowa illustrates a rejection of its
use.
Katko v. Briney

183 N.W.2d 657 (Iowa 1971)
The primary issue presented here is whether
an owner may protect personal property in an
unoccupied boarded-up farm house against tres-
passers and thieves by a spring gun capable of
inflicting death or serious injury.
family. Defendants' home was several miles from
the scene of the incident to which we refer infra.
Plaintiff's action is for damages result-
ing from serious injury caused by a shot from a
20-gauge spring shotgun set by defendants in a
bedroom of an old farm house which had been
uninhabited for several years. Plaintiff and his
companion, Marvin McDonough, had broken
We are not here concerned with a man's
right to protect his home and members of his
and entered the house to find and steal old bot-
tles and dated fruit jars which they considered
antiques.
At defendants' request plaintiff's action
was tried to a jury consisting of residents of the
community where defendants' property was
"ocated. The jury returned a verdict for plaintiff
and against defendants for $20,000 actual and
10,000 punitive damages.
After careful consideration of defendants'

motions for judgment notwithstanding the verdict
and for new trial, the experienced and capable
:rial judge overruled them and entered judg-
ment on the verdict. Thus we have this appeal by
efendants.
II
Most of the facts are not disputed. In 1957
::efendant Bertha L. Briney inherited her parents'
:arm land in Mahaska and Monroe Counties.
eluded was an 80-acre tract in southwest
_.lahaska County where her grandparents and
~ents had lived. No one occupied the house
-· ereafter . ...
For about 10 years, 1957 to 1967, there
- urred a series of trespassing and housebreak-
g events with loss of some household items,
- e breaking of windows and "messing up of the
:--operty in general." The latest occurred June 8,
_967, prior to the event on July 16, 1967 herein
.::·wived.
Defendants through the years boarded up
- e windows and doors in an attempt to stop
--e intrusions. They had posted "no trespass"
gns on the land several years before 1967. The
- earest one was 35 feet from the house. On June
1967 defendants set "a shotgun trap" in the
- n h bedroom. After Mr. Briney cleaned and

ed his 20-gauge shotgun, the power of which
-= was well aware, defendants took it to the
house where they secured it to an iron bed
:h the barrel pointed at the bedroom door.
as rigged with wire from the doorknob to
--e gun's trigger so it would fire when the door
was opened. Briney first pointed the gun so an
intruder would be hit in the stomach but at Mrs.
Briney's suggestion it was lowered to hit the legs.
He admitted he did so "because I was mad and
tired of being tormented" but "he did not intend
to injure anyone." He gave no explanation of
why he used a loaded shell and set it to hit a
person already in the house. Tin was nailed over
the bedroom wjndow. The spring gun could not
be seen from the outside. No warning of its pres-
ence was posted.
Plaintiff lived with his wife and worked regu-
larly as a gasoline station attendant in Eddyville,
seven miles from the old house. He had observed
it for several years while hunting in the area and
considered it as being abandoned. He knew it had
long been uninhabited. In 1967 the area around the
house was covered with high weeds. Prior to July
16, 1967 plaintiff and McDonough had been to
the premises and found several old bottles and fruit
jars which they took and added to their collection
of antiques. On the latter date about 9:30 P.M. they
made a second trip to the Briney property. They

entered the old house by removing a board from
a porch window which was without glass. While
McDonough was looking around the kitchen area
plaintiff went to another part of the house. As he
started to open the north bedroom door the shot-
gun went off striking him in the right leg above
the ankle bone. Much of his leg, including part of
the tibia, was blown away. Only by McDonough's
assistance was plaintiff able to get out of the house
and after crawling some distance was put in his
vehicle and rushed to a doctor and then to a hospi-
tal. He remained in the hospital40 days.
ill
Plaintiff testified he knew he had no right
to break and enter the house with intent to steal
bottles and fruit jars therefrom. He further testi-
fied he had entered a plea of guilty to larceny in
the nighttime of property of less than $20 value
from a private building.
Prosser on Torts, Third Edition, pages 116-
118, states:
if he were present in person would be free to inflict
injury of the same kind."
" ... the law has always placed a higher value upon
human safety than upon mere rights in property, it
is the accepted rule that there is no privilege to use
any force calculated to cause death or serious bodily

injury to repel the threat to land or chattels, unless
there is also such a threat to the defendant's personal
safety as to justify self-defense ... spring guns and
other man-killing devices are not justifiable against a
mere trespasser, or even a petty thief. They are privi-
leged only against those upon whom the landowner,
Restatement of Torts, section 85, page 180,
states: A possessor of land cannot do indirectly and
by a mechanical device that which, were he pres-
ent, he could not do immediately and in person.
Study and careful consideration of defendants'
contentions on appeal reveal no reversible error.
Affirmed.
False imprisonment
Occurs whenever one
person, through force
or the threat of force,
unlawfully detains
another person against
his or her will.
1. Why did the court uphold the jury's verdict in favor of the
plaintiff
trespasser?
2. The dissent stated: "When such a windfall comes to a
criminal as a result
of his indulgence in serious criminal conduct, the result is
intolerable and indeed
shocks the conscience. If we find the law upholds such a result,

the criminal
would be permitted by operation of law to profit from his own
crime." What do
you think?
3. Because the defendants did not raise the issue, this court did
not deal
directly with whether punitive damages were appropriate. What
facts would
support such a finding; what facts would argue against such a
finding? Do you
think punitive damages were appropriate in this case? Why?
4. Should a landowner who sets a trap such as in this case also
be found
criminally liable if an intruder is seriously injured? Why?
5. Do you think the result in this case would have been different
if the
house had been occupied? Why?
6. At trial Mr. Briney testified that "[p] rior to this time ... he
had locke<!
the doors, posted seven no trespassing signs on the premises,
and complained to
the sheriffs of two counties on numerous occasions .... [A]ll
these efforts were
futile and the vandalism continued." What else could the
defendants have done
to protect their property?
b. False Imprisonment
False imprisonment occurs whenever one person, through force
or the
threat of force, unlawfully detains another person against his or

her will. Issues
of false imprisonment most frequently arise in situations in
which store employ-
ees seek to detain suspected shoplifters or employers wish to
detain and inter-
view employees they suspect of unlawful activities.
(1) The elements of false imprisonment
In order to prove false imprisonment, the plaintiff must show
the followin
2. that caused confinement or restraint
3. through force or the threat of force.
- e plaintiff must actually be confined with no means of escape.
For exam-
:; e leaving someone alone in an unlocked office does not
constitute false
-prisonment.
(2) Defenses to false imprisonment
The most common defense to false imprisonment is that the
defen~ant was
mfied in restraining the plaintiff. For example, many states have
enacted stat-
to protect merchants who want to question a suspected
shoplifter. Usually,
-- e statutes provide that a shopkeeper may detain a suspected

shoplifter only
_ - e shopkeeper can show probable cause to justify the delay
and that even
- "'D the shopkeeper may detain the suspected shoplifter only
for a reasonable
~e and in a reasonable manner. As you can imagine, because of
the way these
-ee statutory requirements are worded, each has given rise to a
great deal of
SCUSSION QUESTION
1. Many argue that shoplifting is a major cause of increased
costs. Do
u think shopkeepers should be given more or less leeway in
deciding when to
-,...ain suspected shoplifters?
c. Defamation
Whereas the torts of assault and battery involve physical
contact, the tort
= defamation involves harm to a person's reputation caused by
either oral or
_·rten remarks. Oral defamation is known as slander (remember
"s" for spo-
' and written defamation is known as libel (remember "l" for
literary). To be
idered defamatory, the material must tend to injure a person's
reputation,
old a person up to ridicule, or to excite adverse, derogatory, or
unpleasant
=..ings or opinions about that person. Furthermore, the

statement must present
"' defamatory information as being factual rather than merely
the opinion of
-"'speaker. For example, a movie review or editorial is generally
viewed as a
--ement of opinion rather than fact.
(1) The elements of defamation
Whether it is oral or written, defamation consists of the
following elements:
1. publication
2. of false statements
3. that cause harm to reputation.
The first element, publication, means that someone other than
the plaintiff
..: the defendant must read or hear the defamatory comments.
The offending
Defamation
The publication of false
statements that harm a
person's reputation.
Slander
Spoken defamation.
libel
Written defamation.

Defamation per se
Remarks considered
to be so harmful that
they are automatically
viewed as defamatory.
material cannot harm someone's reputation if it is never seen or
heard by a
third party.
Second, and perhaps most important, the defamatory material
must be
false. No matter how damaging the information, a tort of
defamation has nor
been committed if the statement was true. Note, however, that
the plaintiff may
still be able to recover damages by suing under the theory of
invasion of privacy
or intentional infliction of emotional distress.
As to the third element, the plaintiff must show that the
publication of this
false information damaged his or her reputation. This is usually
established by
showing that the plaintiff lost a job, a contract, or something
else of value as a
result of people having read or heard the defamatory material.
However, his-
torically some remarks are considered to be so bad that they are
automaticall.
viewed as damaging and thus constitute defamation per se.
Examples of such
remarks include the following:
1. that someone has a loathsome communicable disease;

2. that someone committed business improprieties;
3. that someone has been imprisoned for a serious crime; and
4. that an unmarried woman is unchaste.
When dealing with comments that are defamatory per se, the
plaintiff does n
need to prove the statements caused him or her harm, as it is
presumed they did so
(2) Constitutional issues in defamation: The special case of
public
officials and public figures
As a result of the First Amendment's protection of freedom of
speech an.::
freedom of the press, the right to sue for defamation requires a
balancing of the
right to preserve one's reputation with the public's interest in
maintaining a"&.--
marketplace" of ideas.
In 1964, the U.S. Supreme Court addressed this dilemma in New
Yor
Times Co. v. Sullivan.2 An Alabama court had awarded libel
damages to a loca
law enforcement official who had been criticized in an
advertisement in the Ne1..
York Times. The Court stated: "The constitutional guarantees
require, we th in}
a federal rule that prohibits a public official from recovering
damages for -
defamatory falsehood relating to his official conduct unless he
proves that w..~
statement was made with 'actual malice' -that is, with
knowledge that it was
false or .with reckless disregard of whether it was false or

not."3 In 1974, LL.-
Court extended this protection to criticism of "public figures" as
well as gove~-
ment officials.4
What this means in practical terms is that when the plaintiff is a
pubt.::
official or public figure, the plaintiff must prove a fourth
element, actual mali""'
in addition to the three elements that everyone else has to also
prove-that
(1) publication (2) of false statements (3) that cause harm to
reputation. Wh:..,_
2376 u.s. 254 (1964).
3ld. at 279-280.
4Gertz v. Robert Welch, Inc. , 418 U.S. 323 (1974 ).
A. Intentional Torts
lear that this fourth requirement comes into play only if the
plaintiff is a
_.._ ·c official or a public figure, it is less clear whether the
defendant must also
_ .:r member of the media.
First, to qualify as a public figure, a person must either have
achieved wide-
=ad fame or notoriety or be someone who became well known
through involve-
. in a public controversy. Second, as noted above, to prove
actual malice, the Malice
219 •

riff must show that the defendant either knew the material was
false but went Making a defamatory
and published it anyway or acted with a "reckless disregard" for
whether remark either knowing
it was true. This can involve an examination of the editors as to
what they the material was false or
and when they knew it in reaching their decision to publish the
material. acting with a "reckless
--~ -ourts take into consideration such factors as the nature of
the new~ being disregard" for whether
_ rted, the historical trustworthiness of the source of the
information, and the or not it was true.
: constraints publishers are under to meet a deadline.
A prominent California case involving television personality
Carol Burnett
;:rates how these principles have been applied. In Burnett v.
National
_ irer, Inc., 5 Burnett sued the National Enquirer for publishing
a four-sen-
-~ item that read:
- a Washington restaurant, a boisterous Carol Burnett had a loud
argument with
-mher diner, Henry Kissinger. Then she traipsed around the
place offering everyone a
of her dessert. But Carol really raised eyebrows when she
accidentally knocked a
:- = s of wine over one diner and started giggling instead of
apologizing. The guy wasn't
-used and "accidentally" spilled a glass of water over Carol's
dress.6

.-s a preliminary matter the court determined that the National
Enquirer
:...id be viewed as a magazine rather than a newspaper. In
defamation cases,
_-:s show more leniency toward newspapers because their short
deadlines
_ ent them from having enough time to fully investigate their
stories. The
:uirer's normal lead time, however, was one to three weeks,
during which
= staff could verify the accuracy of its stories.
ext the court determined that the story was patently false and
that the
-uirer knew that to be so: "There was no 'row' with Mr.
Kissinger, nor any
=:::ment between the two, and what conversation they had was
not loud or
-erous." Respondent never "traipsed around the place offering
everyone a
= of her dessert, nor was she otherwise boisterous, nor did she
spill wine on
one." 7 Further, the court held that the statement was libelous
on its face, "a
- ge which reasonably carried the implication respondent's
actions were the
r of some objectionable state of inebriation." 8
The jury awarded Ms. Burnett $300,000 in compensatory
damages and
- million in punitive damages. The trial court reduced this to
$50,000
~pensatory damages and $750,000 punitive damages. On appeal
the court

· ed the compensatory award but remanded the case for a retrial
on the
~ of punitive damages, stating that the amount of the punitive
damages was
- Cal. App. 3d 991 (1983) .
...:997.
::.:999.
-- 1013.
disproportionate when compared to the compensatory award.
The dissent dis-
agreed, stating:
The fact is that this is a publication read nationally by 16
million people. The potential
for harm through a repetition of a libel by such an institution is
tremendous. There are
others to be protected from the harm. If the risk to an
intentional wrongdoer that he
will be adequately punished is slight, the defendant may well
chance it again. It can in
effect "write it off" as an expense or cost of doing business.
Thus punitive damages need
to be more than "an expense" item or "cost of doing business"
which the defendant can
calculate and absorb .... 9
(3) Defenses to defamation
Because one of the elements of defamation is that the statement

is false,
truth is an absolute defense. There are also some circumstances
when even the
publication of a false statement can be privileged. For example,
judges, attor-
neys, jurors, and other court personnel are protected against
being held liable
for comments that are made as part of their official duties, even
if the statements
turn out to be false. In 1979, in Hutchinson v. Proxmire, 10 the
U.S. Supreme
Court held that Wisconsin's Senator William Proxmire could not
be sued for
derogatory comments he made on the Senate floor when giving
out one of his
"Golden Fleece Awards." However, he could be sued for making
those same
remarks at a press conference and in a press release.
Note that in the cases discussed above, typically the lawsuit was
filed
against the newspaper, magazine, or television station/network
that either
published or broadcast the defamatory statements. But what
about a situa-
tion where the defamatory information is posted on Facebook or
as part of
somebody's tweet? The party claiming to have been defamed
can file a tort suir
against the individual who posted or tweeted the allegedly
defamatory state-
ments. However, in most cases the person claiming defamation
cannot get a.
judgment against the owner of the Web site on which it was
posted. This is du
to Section 230 of the Communications Decency Act of 1996 that

protects we
site publishers from defamation claims for comments made by
others on their
sites.U
9ld. at 1020 dissenting opinion).
10443 u.s. 111 (1979).
11 47 U.S.C. § 230 (2012) provides:
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be
treated as the publisher or speaker
of any information provided by another information content
provider.
(2) Civil liability
No provider or user of an interactive computer service shall be
held liable on account of-
(A) any action voluntarily taken in good faith to restrict access
to or availability of material that
the provider or user considers to be obscene, lewd, lascivious,
filthy, excessively violent, harassing,
or otherwise objectionable, whether or not such material is
constitutionally protected; or (B) any
action taken to enable or make available to information content
providers or others the technical
means to restrict access to material described in paragraph (1).
SSION QUESTIONS
_ In the case against the National Enquirer, Carol Burnett
testified that the
ents were particularly offensive to her because of her nationally

known
against alcoholism.
a. Do you think that should affect the amount of the damage
award?
b. During the trial Johnny Carson on his program The Tonight
Show
denounced the National Enquirer. How do you think the trial
judge
should have handled that situation?
c. Do you agree with the dissent that a large punitive award was
justified
in this case? Why?
When using social media sites, many people are quite casual
about what
say, often posting material that could be viewed as unpleasant,
offensive,
·cal of others. Under what circumstances do you think someone
could be
-.:. for defamation based on comments made on Twitter or
Facebook? For
- le, consider the case of a Massachusetts woman who sued her
friend for
~g a message on Twitter stating that she was "crazy," or the
health club
"'""who sued posters who gave his club a one (out of a possible
five) star
. Should such postings be actionable as defamation?
d. Invasion of Privacy

The tort of invasion of privacy covers a variety of different
situations. They Invasion of privacy
e An intentional tort
1. disclosure,
intrusion,
3. appropriation, and
~. false light.
Disclosure and intrusion best fit our common conception of
what would
invasion of privacy. Disclosure is the publicizing of
embarrassing private
, and intrusion is the unjustified intrusion in another's private
activities.
ples of intrusion include a neighbor eavesdropping and a
photographer
.:::1ding a movie star by following that person everywhere he or
she goes.
opriation is defined as the unauthorized exploitive use of one's
personality,
-e or picture for the defendant's benefit. For example, Johnny
Carson sued
_ 'chigan corporation for renting and selling "Here's Johnny"
portable toi-
The corporation acknowledged that "Here's Johnny" was the
introductory
g.an for The Tonight Show and in fact coupled the phrase with a
second one,
- -e World's Foremost Commodian." The court determined that
the defendant

- =airly appropriated Carson's identity and used it for the sale of
its products. 12
Finally, false light involves the use of a picture or some other
means to
~ a connection between the person and an idea or a statement
for which the
- idual is not responsible.
-xm v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th
Cir. 1983).
that covers a variety
of situations, including
disclosure, intrusion,
appropriation, and false
light.
Disclosure
The intentional
publication of
embarrassing private
affairs .
Intrusion
The intentional
unjustified
encroachment into
another person's private
activities.

In cases involving invasion of privacy, truth is not considered
to be a valic
defense. For example, it is not considered acceptable to
publicize that someone
is having an affair with his or her neighbor, even if it is true.
However, "news-
worthiness" is a valid defense. If the material is of legitimate
public interest- fo:-
example, the mayor having an affair with a member of city
council-then its
publication is considered to be privileged unless it was done
with malice. That i-
why it is so difficult for movie stars to prove this tort against
tabloids and gossi_
columnists. Finally, as with other intentional torts, consent is a
defense.
Interesting issues regarding an employee's right to privacy in
persona;.
e-mails arise when those e-mails are created on an employer's
computer system.
Consider the case of Gina Tiberino. Ms. Tiberino was a
secretary in the Prosecutin
Attorney's Office, and the county fired her for poor work
performance related to
her using e-mail for personal matters. As most courts have
done, the Washingto~
Court of Appeals held that employers have the right to monitor
such e-mails an
could fire her for her misuse of the employer's computer system.
However, the
court stated that the county could not release the content of
those e-mails to the
media as "it is the amount of time spent on personal matters, not
the content a.-
personal e-mails ... that is of public interest.13

e. Intentional Infliction of Emotional Distress
Traditionally, plaintiffs could recover for their emotional
distress that w-
caused by another tort, such as battery or false imprisonment.
More recently tt=
courts have created a new tort that allows plaintiffs to recover
for emotio--
distress even absent another type of injury. This tort of
intentional infliction - -
emotional distress is sometimes referred to as the tort of
outrage. In order -
ensure that such claims are valid, most courts have placed
severe restrictio-
on what the plaintiff must prove, such as requiring that the
intentional act thz:
causes the emotional distress be extreme and outrageous and the
emotional rl~"-
tress suffered be severe.
Therefore, to prove the intentional infliction of emotional
distress, a phri::.-
tiff must show
2. that is extreme and outrageous
3. and causes
4. severe emotional distress.
As to the fourth requirement, some courts add that the
emotional distress m
be so severe that it results in physical injury. In the following
case, see if . ~ _
agree that the supervisor's actions were sufficiently extreme and
outrageous --

support a claim of intentional infliction of emotional distress.
13Tiberino v. Spokane Cnty., 13 P.3d 1104, 1110 (Wash. App.
2000).
BACKGROUND
From 1984 to 2004, Cabaness was a line
::ring foreman at Bountiful Power under the
-ediate supervision of Brent Thomas, the super-
dent of operations. The director of Bountiful
er and Thomas's direct supervisor was Clifford
- elis. While Michaelis had authority to hire
- :iire employees, Thomas did not.
Numerous employees at Bountiful Power
· - ed that Thomas frequently used gross pro-
- . and consistently verbally harassed, intimi-
-00, and ridiculed the employees he supervised.
his subordinates, Thomas was known as
- le Hitler" or "Dr. Jekyl and Mr. Hyde,"
- the walkway to his office was known as the
~een mile," a name from a movie depicting the
- way to the electric chair in a prison.
Thomas frequently made the work of his
rdinates harder without providing any jus-
cation for doing so other than to assert his

ority over them. . . . When Cabaness . . .
:::estioned why, Thomas responded that he was
e boss, and if they did not do what he said, he
uld write them up for insubordination, and
--=: might be fired ....
Thomas's conduct also evinced a disregard
~ safety procedures in an occupation that relies
- such procedures to protect its employees.
.- -ound 1983 or 1984, Thomas refused to let
....2baness put a ground on a pole with a primary
e of 7200 volts before working on it in order to
-=,e time. On another occasion, Thomas ignored
- :-several months Cabaness's concerns regarding
own fuses on a power line near an elementary
- ool that Cabaness felt were potentially haz-
--dous for children.
Throughout Cabaness's career with Bountiful
ower, Thomas would insult and demean him
. , among other things, calling him "dumbass,"
"jackass," and "asshole," and using cutting sar-
casm. Thomas would occasionally tell Cabaness
that he had a "piss poor attitude." On one occa-
sion, Thomas told Cabaness, "You know what
your problem is? It's your wife. You need to get rid
of your wife." Thomas pursued this subject until

Cabaness finally responded "my wife is none of
your business and my relationship with my wife
is none of your business, so drop it." On another
occasion, Cabaness witnessed Thomas knee an
employee in the groin with enough force to cause
the employee to fall to the floor in pain, after which
Thomas stated, "I guess I showed you who is boss."
... Cabaness was off work from July 23 to
September 8, 2003, due to medically-diagnosed
depression attributable in significant part to "a
hostile work environment and an abusive boss."
[W]hen Cabaness returned to work, Thomas sin-
gled him out in an employee meeting, threatened
to fire him, and criticized him about personal
issues in front of other employees.
Based on the above facts, Cabaness brought
intentional infliction of emotional distress claims
against Thomas ....
The district court entered summary judg-
ment in favor of .. . Thomas, holding that as a
matter of law Cabaness failed to demonstrate
that Thomas's conduct was extreme, intolerable,
and outrageous and therefore Cabaness could not
prove intentional infliction of emotional distress.
Cabaness appealed the district court's grant
of Defendant's motion for summary judgment.
ANALYSIS
A claim of intentional infliction of emotional
distress usually accrues when a plaintiff suffers
extreme emotional distress. However, there are occa-

sions when "emotional distress does not so much
occur as unfold- for example, where a defendant
subjects a plaintiff, not to a single outrageous act,
but to a pattern or practice of acts tolerable by them-
selves though clearly intolerable in the aggregate."
[R]easonable minds could differ regard-
ing whether Thomas's conduct was outrageous
and intolerable, and therefore the district court
erred by failing to allow Cabaness's claim against
Thomas to proceed to a jury.
To succeed on a claim of intentional inflic-
tion of emotional distress, a plaintiff must dem-
onstrate that the defendant
intentionally engaged in some conduct toward the
plaintiff, (a) with the purpose of inflicting emotional
distress, or, (b) where any reasonable person would
have known that such would result; and his actions
are of such a nature as to be considered outrageous
and intolerable in that they offend against the gen-
erally accepted standards of decency and morality.
Further, "[i]t is for the court to determine, in the
first instance, whether the defendant's conduct may
reasonably be regarded as so extreme and outra-
geous as to permit recovery." However, "[w]here
reasonable men may differ, it is for the jury, subject
to the control of the court, to determine whether, in
the particular case, the conduct has been sufficiently

extreme and outrageous to result in liability."
"To be considered outrageous, the con-
duct must evoke outrage or revulsion; it must
be more than unreasonable, unkind, or unfair."
Additionally, we have stated that "liability [for
intentional infliction of emotional distress] clearly
does not extend to mere insults, indignities,
threats, annoyances, petty oppressions, or other
trivialities." However, we recognized that while a
single insult, indignity, or threat may not give rise
to liability for intentional infliction of emotional
distress, a continuous and ongoing pattern of the
same may constitute extreme, intolerable, and
outrageous conduct and thus result in liability.
Here, Cabaness has alleged an ongoing and
continuous pattern of abusive, intimidating, and
harassing behavior from his supervisor, Thomas.
Throughout Cabaness's career, Thomas insulted
and demeaned him .... Indeed, many employees
testified that Thomas frequently used gross profan-
ity and consistently verbally harassed the employ-
ees, including Cabaness. . . . Various employees
testified that Cabaness was often the focus o ·
Thomas' abusive behavior, especially towards the
end of his employment with Bountiful Power ... .
Cabaness also provided evidence dem-
onstrating that Thomas intentionally made
Cabaness's job more difficult and stressful. ...
In an occupation that relies on safety proce-
dures to secure the safety of its employees, Cabanes
offered evidence demonstrating Thomas's disre-

gard for the safety of Cabaness .... Cabaness tes-
tified that Thomas frequently required him, anc
other employees, to perform electrical work in the
rain even though the work could have been post-
poned and completed more safely.
In late 2003, Michaelis finally formed a
committee to investigate the complaints regard-
ing Thomas's harassment and intimidation. Aftt!:'
interviewing fifteen employees, Michaelis sent a
letter to Thomas warning him that his "intimi-
dation needs to stop." When the situation failec
to improve, Cabaness resigned in January 20().:
Significantly, between summer 2003 and sprin.=
2004, all but two of the Bountiful Power emplo; -
ees assigned to Thomas's crew quit primarily d"""
to his harassing, abusive, and intimidating condu
While any of these alleged insults or indigru-
ties on their own may not rise to the level of ou:-
rageous and intolerable conduct, taken togeth
and viewed in a light most favorable to Cabanes5
we conclude that reasonable minds could diffr-
regarding whether Thomas's conduct was m:::.-
rageous and intolerable. Accordingly, we haL:.
that the district court erred when it found as .::.
matter of law that Thomas's conduct was n~ -
outrageous, intolerable and offensive to gem·--
ally accepted standards of decency and morali.
Rather, because the facts, as alleged, raise gen··=-
and material issues regarding the level of ou
geous and intolerable conduct, summary ju .... =
ment was inappropriate.

ISCUSSION QUESTIONS
_ What must a plaintiff prove in order to win a case of
intentional infliction
·onal distress?
_ Do you think that the sort of "bad behavior" described in this
case is
'---~--~·~,g that can be cured by the legal system or is this the
type of situation
=an employee should simply either tolerate the behavior or
quit?
Procedurally, what had to happen next in this case for the
plaintiff to
SSION QUESTIONS
- What constitutes "extreme and outrageous" conduct is
obviously a
g issue, as is how debilitating the emotional distress must be to
be seen as
=-~."' Consider the facts of Harris v.]ones, 380 A.2d 611 (1977)
. The plaintiff
- - · employer (General Motors) and one of his supervisors, H .
Robert Jones.
hllew that the plaintiff suffered from a speech impediment that
caused
- stutter. Jones also knew that the plaintiff was very sensitive
about his
....=ry. "Jones approached Harris over 30 times at work and
verbally and

- y mimicked his stuttering disability .... As a result of Jones's
conduct
- was 'shaken up' and felt 'like going into a hole and hide.' "
However,
_ un concluded that Harris's humiliation was not so intense as to
meet the
:-ement of being severe. Do you agree?
- The March 1984 issue of Hustler magazine ran a parody of an
· ement for Cam pari Liqueur that featured various celebrities
describing the
e they tasted Campari. Hustler's version presented a supposed
interview
- e Reverend Jerry Falwell, a nationally prominent Protestant
minister,
="'-ative political figure, and head of the now defunct "Moral
Majority."
-advertisement" claimed that Falwell's first experience with
Campari was
; an incestuous sexual encounter with his mother in an outhouse.
Shortly
- e issue hit the newsstands, Falwell sued the magazine for
libel, invasion
acy, and intentional infliction of emotional distress. If you were
the judge,
ould you rule on each of these issues?
Deborah Roach was a frequent guest on the Howard Stern radio
show.
she died, her sister gave a portion of her cremated remains to a
friend,
turn brought them to a taping of Stern's show, because of her
belief that

::..y happiness Roach had was when she was on his show.
During the show,
and others handled various bone fragments while making vulgar
remarks.
- -::;. · o show was videotaped and later broadcast on a national
cable television
::. Roach's sister sued for intentional infliction of emotional
distress. The
- :ound a basis for the lawsuit. Do you agree?
arm to a Person's Property
__ . can be classified as either real property (land and anything
permanently
--ed to land) or personal property. The tort of trespass is when
someone
your rights to real property. An invasion of your rights to
personal prop-
-- be classified as either trespass to personal property or
conversion.
225 •
a. Trespass to Land
A trespass occurs whenever
1. someone enters or causes something to enter or remain

2. on the land of another
3. without permission.
Examples of trespass include entering land that is posted with
"No Trespassffi~
signs, standing alongside someone else's property and throwing
rocks onto
property, and tying your boat to someone else's dock during a
storm. The
situation raises the most common defense to trespass-that is,
that the tres--
was warranted to save the defendant's property or life.
b. Trespass to Personal Property and Conversion
Trespass to personal property occurs when someone harms or
interfe::
with the owner's exclusive possession of the property but has no
intentio
keeping the property. For example, if your neighbor
intentionally lets your ~-~=
loose, hoping it will never return, your neighbor has committed
the tort of tr
pass to personal property. Conversion is considered the "big
brother" of tres
in that it involves the more serious taking of someone else's
property with
intent of permanently depriving the owner. It is the civil side of
theft.
c. Defenses to Torts against Property
As mentioned above, private necessity, such as the need to tie
up a boa:
someone else's dock during a storm, may serve as a defense to
trespass. Also, _.

erally there is the right to invade another's land as a public
necessity (such -- -
put out a fire or to catch a fleeing felon). Another defense to
trespass topers~
property and conversion is rightfully retaining someone's
property. For exan:;
a car mechanic may rightfully retain an auto on which he has
worked until lie
paid for his labor. This is known as an artisan's lien.
3. Other Intentional Torts
False arrest, malicious prosecution, and abuse of process are all
intentional-
that are designed to provide some protection against misuse of
the legal sy ~-
False arrest occurs when a person is arrested (by either a law
officer or a cir:::-
without probable cause and when not covered by special
privilege. Mali
prosecution and abuse of process both involve malicious and
improper us=
the courts or other forms of legal proceedings. Note that the
plaintiff must r·
that the behavior was malicious (that is, that the person
proceeded even th
the charges were known to be invalid) and not just a mistake.
Finally, there are intentional torts related to business dealings.
Frau
intentional misrepresentation, involves (1) the intent to induce
reliance o- -
misrepresentation, (2) knowledge that the misrepresentation is
false or a r
disregard for the truth, (3) justifiable reliance, and (4) harm.
Fraud can forr:::

B. Negligence
-either a tort or a contract claim. We will discuss it more fully
in the next
n contracts.
-e tort of interference with a contractual relationship prohibits
one from
-E a party to breach a contract or interfering with the
performance of a
- Intentionally interfering with a contractual relationship can
prove to
e..xpensive, as is illustrated by the case of Pennzoil v. Texaco.
Pennzoil had
~with the Getty Oil Company to purchase Getty Oil at $122.05
per
-~"ore they could do so, however, Texaco offered Getty a higher
price per
'ch Getty accepted. Pennzoil took Texaco to court and won a
$10.53
dgment on its claim of tortious interference. Although that
amount was
-="" ed to a $3 billion settlement, the case still stands as a
powerful warn-
=:::.:lSt intentionally derailing contractual arrangements.H
: 5 e 7-2 summarizes the elements and defenses of the most
common
al torts.
GLIGENCE

common tort actions involve negligence. Negligence is a failure
to act
~- -onably prudent and careful person is expected to act in
similar circum-
------ It is a careless inflicting of an injury as opposed to an
intentional one .
.: ce actions can arise from such diverse circumstances as a slip
on a wet
- a supermarket floor to alleged medical malpractice. The four
basic ele-
a negligence case are duty, breach of duty, causation, and harm.
Elements of Negligence
-er 1 you learned that not every problem is a problem for which
the
.ill supply a remedy. For example, to be found negligent, a
person must
--ed unreasonably under the circumstances. More specifically,
the courts
- the following four elements to establish negligence:
The defendant must owe a duty to the plaintiff to act
reasonably, and
~ the defendant must have breached that duty
~ thereby causing
- the plaintiff harm.
- the following case, the plaintiffs learned that a feeling of
outrage is not
_- to support a cause of action.

La baton, Texaco Reported to Reach Accord on Pennzoil Suit,
N.Y. Times, Dec. 19, 1987.
227 •
Prima Facie Case
Assault
2. that creates a reasonable apprehension
of
3. an immediate harmful or
offensive physical contact
Battery
2. that creates a harmfu I or offensive
physica l contact
False imprisonment
2. that caused confinement or restraint
3. through force or the threat of force
Defamation
1. publication
2. of fa lse statements
3. that cause harm to reputation

Invasion of privacy covers a variety of
different situations, including
1. disclosure
2. intrusion
3. appropriation
4. fa lse light
Intentional infliction of emotional distress
2. that is extreme and outrageous
3. and causes
4. severe emotional distress
Trespass to land
1. someone enters or causes someth ing
to enter or remain
2. on the land of another
3. without permission
Trespass to personal property
1. interference with the owner's
exclusive possession
2. of persona l property
Conversion
1. taking
2. personal property
3. of another
4. with the intent of permanently depriving
the owner
Figure 7-2 Summary of Intentional Torts

Defenses
1. consent
2. self-defense
3. defense of others
4. sometimes defense of property
1. consent
2. justification (e.g., shopkeeper's
statute)
1. truth
2. privilege
1. consent
2. newsworthiness
1. consent
1. consent
2. private necessity
3. publi c necessity
1. rightful retention (e.g., under a
mechanic's lien)
2. necessity
Yvonne Ewans, Camille Lewis, Lewis's
or daughter, Saravanan Rathinasabapathy,
=...,d Nithya Saravanan sued Wells Fargo Bank

~ state court under Texas tort law. Wells Fargo
:cmoved to the Northern District of Texas and
on summary judgment on all claims. The plain-
..ifs appealed .... After reviewing the parties'
~ missions and the summary judgment record,
e cannot but agree that the district court came
- the right conclusion.
Cindy Pirrello worked as a teller at a Wells
~-~o branch in Frisco, Texas, and at 1:30 in the
_.:....ernoon ... she had a half-hour left before clos-
::! rime. That is when she watched two men walk
- whom she had never seen before. As they sat
- wn together at loan officer Matt Palmer's desk,
:rello for a second noticed what looked like a
_ ::::1 handle on one man's right hip, but-before
-e could get a better look-he had pulled his
- rt down over his waistband.
Pirrello told her shift supervisor, Sonia
- nzo, that one of the men might have a gun.
- onzo told Pirrello not to be crazy and went back
er work. Pirrello could not brush it off so eas-
remembering that bank employees had been
- -ed to keep an eye out for suspicious activity;
- tmknown assailant recently had gotten away
-:zr robbing a nearby Wells Fargo. Plus, a techni-
- named John Rooney was performing main-
- ce on the vault, leaving the bank's security

- romised.
Pirrello relayed her concern to another
- er, Chris Maiwald, whose desk sat adjacent
_ almer's. Maiwald verified the holster on the
-·s hip, but-because of the pulled-down
-:- could not tell if it housed a gun. Maiwald
noticed the men acting strangely, particu-
- rhe man with the bulge under his shirt. He
: _ getting up, talking on his cell phone, pac-
~ ::: ound, and looking out the windows. Then
aid saw an SUV parked out front. It had
B. Negligence 229 •
tinted windows and the ignition running. One
door was wide open. Maiwald walked back into
the vault to ask Rooney, the technician, if he
owned the SUV; he did not.
Maiwald, a former sheriff's deputy in
Randall County, Texas, agreed they had to piay
it safe, that they should call for backup to inves-
tigate. After making a group decision, ... Pirrello
tripped the silent alarm. Wells Fargo's private
security center called the branch to see what was
going on-to make sure it was not a false alarm.
Pirrello answered and explained right off the bat
"we're not robbed." She went on to say there
were "two males sitting at one of our personal
desks" and "we have a possibility that he has a
gun on his hip, and his car is parked right outside

the door and they've been on the phone since they
got here." Pirrello added "our vault [is] wide open
because we had a problem last night."
The private security operator told Pirrello
to call 911. ... Maiwald then took over the call:
Mr. Maiwald: If we could, could we have a
police officer, not in uniform preferably?
911 Operator: They're coming now on a
robbery.
Mr. Maiwald: Anyways. (Laughter) You
might want to-you might want to stop that. It's
not a robbery in progress.
911 Operator: Okay, sir. We have one offi-
cer that's there right now. What is actually going
on there, then?
Mr. Maiwald: Nothing .... Very suspicious.
So-you know, and I apologize for this, but that
said, probably what we need is maybe just the
officer to either, you know, walk in and say hi to
everybody or just stay in his car out front. I don't
know what your procedure is on that.
The police did not just send one officer to
investigate. They sent in no fewer than ten offi-
cers. They set up a perimeter, and the SUV -the

getaway car-started to drive off. The police
stopped it and ordered the driver to call the man
inside the bank, the one with the bulge. Once the
police had the man on the phone, they ordered
him out of the bank-had him crawl out the
front door on his hands and knees. After subdu-
ing him, the police stormed the bank and cap-
tured the other man.
Nobody had a gun. Neither man had any
nefarious intentions. To the contrary, both are
hard-working and law-abiding. The man with the
hip holster was Ewans, and the holster was for his
phone. He had just sold his car to the other man,
Saravanan. Ewans's girlfriend, Lewis, had given
them a ride to Wells Fargo to secure a car loan.
Lewis, who drove the tinted SUV, had her young
daughter in the car-which is why she left it run-
ning and kept a door open while waiting in front
of the bank.
Ewans's negligence claims must fail under
an objective standard. Nobody can argue that the
plaintiffs-and particularly Ewans-suffered
great embarrassment. But just because somebody
has been hurt does not mean that the law will
find fault. Indeed, harm is but a fraction of the
test; For the plaintiffs to recover, they must show
that Wells Fargo (1) owed them a duty of care, (2)
which it breached, (3) which in turn caused their
damages. The focus here is on prong two, whether
Wells Fargo lived up to its duty of care-whether
its employees acted like the reasonable person
would.
After Wells Fargo moved for summary judg-

ment, the plaintiffs failed to point to evidence
establishing a genuine issue of material fact that
the bank employees acted unreasonably under
the circumstances ....
Pirrello, Maiwald, and Zlotnik kne
that a different Wells Fargo had recently beer:
robbed. Their vault was exposed. Two men, no::
regular customers of the bank, walked in near
closing time and would not sit still. They kep:
talking on their phones, pacing, looking aroun
the bank, and searching out the windows. One
employee saw what might have been a gun, anc
the other employees acknowledged a bulge o:
some kind hidden under one man's shirt. Worse.
an unknown SUV was parked-running, with c.
door open-immediately in front of the bank.
The employees did not know if the men were cas-
ing the joint. They did not know if the car was
a getaway car. Under these circumstances, it was
reasonable to want to call for an investigatorr
backup. When they did, the employees told the
911 operator that there was no robbery and spe-
cifically asked for just one police officer either
stay outside in his car or to do a walk-through.
Everybody involved likely wishes [none o;
this ever] happened, or, at least, that it had no:
happened as it did. In a perfect world, Saravana:::.
gets his loan and Ewans sells his car; Pirre
routinely closes the bank and the police patr~.
without incident; everyone goes home to enjo
a North Texas Saturday night. But tort law d~
not require the optimal outcome, just reasonab:e
behavior-and will not here compensate Ewam
even though he innocently suffered. Doing s

would punish ordinarily prudent bankers, bank-
ers who might then be deterred from soundin:=
the alarm in dangerous situations. When it com
to security, the law requires us to accept reaso:..-
able false positives in order to avoid the mo:-e
catastrophic false negatives.
AFFIRMED.
1. Which element of negligence were the plaintiffs unable to
prove?
2 . Do you agree with the court's last statement that in the case
of secu:--
it is better to have false positives than to risk false negatives?
B. Negligence
- rhe following sections, we will discuss in more detail the four
elements
ence: duty, breach, cause, and harm.
Duty
:"' e law imposes a duty to act with "due care." This due care
standard is
----"~in terms of how a "reasonably prudent person" would act
in the same
n. If the person has some specialized type of training, such as a
medical
= rhen that individual is expected to act not just as a reasonable

person
- act but also as a reasonable person" with medical training
would act.
~rmore, the greater the inherent danger is in a particular
situation, the
.:autious the individual is expected to be. The duty is owed by
all persons
- - ~e society to a degree that is consistent with their ages and
physical and
onditions. Jurisdictions differ, however, as to whom it is owed.
Most
~e the position that this duty to act with due care is owed to
anyone
- ers injuries as a proximate or direct result of the person's
actions. Other
say the duty applies only to those persons for whom there was a
foresee-
-k.
"That legal duty you owe to others also varies depending on
your relation-
- mat other person. The closer and more direct the relationship,
the greater
·elihood that a court will find a duty. For example, a doctor
clearly has a
: ::> use due care in treating her patients. However, does the
doctor also owe
ro the patient's family? For instance, if the doctor failed to
diagnose a
--_·ous disease and the patient transmitted that disease to his
wife, should
=e be able to sue the doctor?

--~other example of how the relationship between the parties
can deter-
- - e degree of duty owed is seen in the varying levels of duty a
landowner
-o different types of people on his or her land. Many states,
using a stan-
- ased solely on the status of the person injured, hold that a
higher duty
ed to someone lawfully invited and present than to a trespasser.
Further,
::JaY view the duty owed to an adult trespasser as less than that
owed to a
- -..espasser. Other states simply say that landowners owe a
duty of care to
ne on their land. However, the level of duty varies with the
circumstances,
-~--~·~g whether the person harmed was a trespasser. While the
result may be
- e, the approaches are fundamentally different. A court in the
latter type
-~diction would not base its analysis solely on the status of the
person
-_ but would take into account everything that contributed to
the injury.
One of the circumstances that might influence a finding of
negligence is
-er the defendant was acting under an emergency situation. For
example,
ery colorful opinion, Cordas v. Peerless Transportation Co., 15
New York's

·- court was faced with the following situation: A thief was
running down
attan street being chased by his victim and a group of concerned
citizens.
-- ·et, armed with a pistol, jumped into a parked taxicab and
ordered the
=:: o drive. The driver proceeded about 15 feet and then:
Misfeasance
Acting in an improper
or a wrongful way.
Nonfeasance
Failing to act.
quickly threw his car out of first speed in which he was
proceeding, pulled on the
emergency, jammed on his brakes, and, although he [thought]
the motor was still run-
ning, swung open the door to his left and jumped out of his car.
He confesses that the
only act that smacked of intelligence was that by which he
jammed the brakes in order
to throw off balance the hold-up man who was half-standing and
half-sitting with his
pistol menacingly poised.16
Mrs. Cordas and her two children were standing on an adjacent
sidew
and were injured by the driverless taxi. They sued the taxicab

company, clairr:-
ing that the driver acted negligently in jumping to safety and
leaving the moving
vehicle uncontrolled.
The court stated that "the test of actionable negligence is what
reasonab
prudent men would have done under the same circumstances."
17 The court th
held that when faced with an emergency a person is not required
to exercise
same mature judgment that is expected under circumstances
where there is --
opportunity for deliberation. In this case the driver" -the
ordinary man in
case-acted in a split second in a most harrowing experience ....
The court
loathe to see the plaintiffs go without recovery even though
their damages wer.""
slight, but cannot hold the defendant liable upon the facts
adduced at the trial.'"
Therefore, plaintiffs were not entitled to recover from the cab
driverY
Finally, the courts sometimes couch their discussion of duty in
terms -·
misfeasance versus nonfeasance. Generally, you only owe a
duty to refrain fro-
harming someone. If you do actually harm someone, that is
misfeasance. Furth
there is no duty to prevent harm to those with whom you have
no direct contac:
Therefore, generally nonfeasance, the absence of action, cannot
lead to liabili.
However, in order to find liability, a court might label an
activity as misfeasan-

even though on the surface it appeared as though the defendant
had not direc:
caused the injury. This was the case in Weirum v. RKO General
Inc. 20 In order:
increase its listening audience, a rock station held a contest
wherein a traveli::_
disk jockey gave out clues to his location. The first to arrive on
the scene wo~-
receive a prize. Two teenagers, in an attempt to beat each other
to the pri.z.e
drove in excess of 80 miles an hour and forced the plaintiff's car
off the roa-
The court stated:
The primary question for our determination is whether
defendant owed a duty to dece-
dent arising out of its broadcast of the giveaway contest. The
determination of du .
is primarily a question of law. It is the court's "expression of
the sum total of those
considerations of policy which lead the law to say that the
particular plaintiff is entitle<!
to protection" (Prosser, Law of Torts (4th ed. 1971) pp. 325-
326). Any number of con-
siderations may justify the imposition of duty in particular
circumstances, includin
the guidance of history, our continually refined concepts of
morals and justice, th
convenience of the rule, and social judgment as to where the
loss should fall. While the
question whether one owes a duty to another must be decided on
a case-by-case basi
16Id. at 199-200.
17 Id. at 200.
18Id. at 202.

t9Id.
20539 P.2d 36 (Cal. 1975).
B. Negligence
- is governed by the rule of general application that all persons
are required
-dinary care to prevent others from being injured as the result of
their conduct.
~foreseeability of the risk is a primary consideration in
establishing the element
- found that the risk to the plaintiff was foreseeable. While
acknowledg-
- ormally, absent a special relationship, no one owes a duty to
control
- ct of third parties, the court stated that the rule does not apply
in a
- as this one where the radio station's conduct is what created
the undue
nee exists when the defendant is responsible for making the
plaintiff's posi-
orse, i.e., defendant has created a risk. Conversely, nonfeasance
is found when
- - ndant has failed to aid plaintiff through beneficial
intervention. As section 315
- Restatement of the Law of Torts, Second] illustrates, liability
for nonfeasance is
limited to those circumstances in which some special
relationship can be estab-

.:.. If, on the other hand, the act complained of is one of
misfeasance, the question
_ is governed by the standards of ordinary care discussed above.
Here, there can
e doubt that we review an act of misfeasance to which section
315 is inapplicable.
city is not predicated upon defendant's failure to intervene for
the benefit of dece-
ut rather upon its creation of an unreasonable risk of harm to
him.22
SSION QUESTION
- In the Weirum case the defendants argued that finding them
liable
- lead to situations in which "entrepreneurs will henceforth be
burdened
an avalanche of obligations: an athletic department will owe a
duty to an
-sports fan injured while hastening to purchase one of a limited
number
- ·ets; a department store will be liable for injuries incurred in
response to a
"-they-last' sale."23 How do you think the court responded?
_._s the Weirum court noted, issues of duty usually revolve
around whether
: aintiff was someone whom the defendant could foresee would
be harmed
actions. Courts frequently say that duty is a question of law to
be deter-
=d by the judge, while foreseeability is a question of fact to be

determined
- e Jury.
It is always to the defendant's benefit to end a lawsuit as early
as possible
•ve litigation expenses and to put the matter to rest. On the
other hand, it is
~ to the benefit of the plaintiff to go to trial, especially when
the facts may
.:se the jury's sympathy. Therefore, in a negligence action the
defendant will
:o argue whenever possible that the defendant owed no duty to
the plaintiff.
-'uty is a question of law, the judge can resolve the matter on a
motion to
· ss. If the judge determines that there was no duty, then the
plaintiff loses
:. the case is dismissed. However, the plaintiff will try to
characterize the issue
_ question of foreseeability, thereby necessitating a trial. Then
the jury, after
233 •
hearing all of the evidence and seeing the extent of the
plaintiff's injuries, caz
resolve the issue of foreseeability as a question of fact.
At times, even though the person injured was a "foreseeable
plaintiff," fo:

policy reasons the courts will state that no duty is owed to the
plaintiff. Fo~
example, in New York, until the courts were confronted with the
foiiowing case.
an infant harmed while a fetus had no right to sue for his or her
negligen .
caused injuries. While reading the case, pay particular attention
to the reasoru
the court gives for its decision to expand the range of those to
whom a duty :_
owed to include a viable fetus.
DESMOND,}.
The complaint served on behalf of this
infant plaintiff alleges that, while the infant was
in his mother's womb during the ninth month of
her pregnancy, he sustained, through the negli-
gence of defendant, such serious injuries that he
came into this world permanently maimed and
disabled. Defendant moved to dismiss the com-
plaint as not stating a cause of action, thus tak-
ing the position that its allegations, though true,
gave the infant no right to recover damages in the
courts of New York. The Special Term granted
the motion and dismissed the suit, citing Drobner
v. Peters (232 N.Y. 220). In the Appellate Division
one Justice voted for reversal with an opinion in
which he described the obvious injustice of the
rule, noted a decisional trend (in other States and
Canada) toward giving relief in such cases, and
suggested that since Drobner v. Peters (supra) was
decided thirty years ago by a divided vote, our
court might well re-examine it.
The four Appellate Division Justices who

voted to affirm the dismissal below, wrote no
opinion except that one of them stated that, were
the question an open one and were he not bound
by Drobner v. Peters (supra), he would hold that
"when a pregnant woman is injured through
negligence and the child subsequently born suf-
fers deformity or other injury as a result, recovery
therefore may be allowed to the child, provided
the causal relation between the negligence and
the damage to the child be established by com-
petent medical evidence." (278 App. Div. 913.) It
will hardly be disputed that justice (not emotion-
alism or sentimentality) dictates the enforcement
of such a cause of action. The trend in decisions o
other courts, and the writings of learned commen-
tators, in the period since Drobner v. Peters was
handed down in 1921, is strongly toward making
such a recovery possible. The precise question for
us on this appeal is: shall we foiiow Drobner t.
Peters, or shall we bring the common law of this
State, on this question, into accord with justice?
think, as New York State's court of last resort, we
should make the law conform to right.
Drobner v. Peters (supra), like the presen-
case, dealt with the sufficiency of a complain:
aiieging prenatal injuries, tortiously inflicted on a
nine-month foetus, viable at the time and actuall.
born later. There is, therefore, no material distinc-
tion between that case and the one we are pasc-
ing on now. However, Drobner v. Peters must
examined against a background of history and o:
the legal thought of its time and of the thirty years
that have passed since it was handed down .. .
The movement toward a more just treatment o:

such claims seems to have commenced with the
able dissent in the Allaire case, which urged that
_ -; d viable but in utero, if injured by tort, should,
en born, be allowed to sue ....
In Drobner v. Peters (supra), this court, find-
- no precedent for maintaining the suit, adopted
__ , general theory of Dietrich v. Northampton
ra) , taking into account, besides the lack of
- ority to support the suit, the practical diffi-
~es of proof in such cases, and the theoretical
- -_, of separate human existence of an infant in
-~~o. It is not unfair to say that the basic reason
~ Drobner v. Peters was absence of precedent.
- wever, since 1921, numerous and impressive
- ative precedents have been developed ....
: law review articles on the precise question
-~e is an ample supply. They justify the state-
-- t in Prosser on Torts, at page 190, that: "All
:ers who have discussed the problem have
-"'ed in condemning the existing rule, in main-
. g that the unborn child in the path of an
-omobile is as much a person in the street as
-" mother, and urging that recovery should be
wed upon proper proof."
What, then, stands in the way of a rever-

here? Surely, as an original proposition, we
uld, today, be hard put to it to find a sound
~-on for the old rule. Following Drobner v.
;ers (supra) would call for an affirmance but
; ~hie£ basis for that holding (lack of precedent)
.anger exists. And it is not a very strong rea-
anyhow, in a case like this. Of course, rules
..aw on which men rely in their business deal-
- should not be changed in the middle of the
e, but what has that to do with bringing
tice a tortfeasor who surely has no moral
her right to rely on a decision of the New
-- Court of Appeals? Negligence law is com-
law, and the common law has been molded
- changed and brought up-to-date in many
:her case. Our court said, long ago, that it had
only the right, but the duty to re-examine a
·on where justice demands it. That opinion
-e:s that Chancellor Kent, more than a century
= . had stated that upwards of a thousand cases
d then be pointed out in the English and
- erican reports "which had been overruled,
_ ~ed or limited in their application," and
that the great Chancellor had declared that deci-
sions which seem contrary to reason "ought to be

examined without fear, and revised without reluc-
tance, rather than to have the character of our
law impaired, and the beauty and harmony of the
system destroyed by the perpetuity of error." And
Justice Sutherland, writing for the Supreme Court
in Funk v. United States (290 U.S. 371, 382), said
that while legislative bodies have the power to
change old rules of law, nevertheless, when they
fail to act, it is the duty of the court to bring the
law into accordance with present day standards
of wisdom and justice rather than "with some
outworn and antiquated rule of the past." No
reason appears why there should not be the same
approach when traditional common-law rules of
negligence result in injustice.
The sum of the argument against plaintiff
here is that there is no New York decision in
which such a claim has been enforced. Winfield's
answer to that (see U. of Toronto L.J. article,
supra, p. 29) will serve: "if that were a valid
objection, the common law would now be what it
was in the Plantagenet period." And we can bor-
row from our British friends another mot: "When
these ghosts of the past stand in the path of justice
clanking their mediaeval chains the proper course
for the judge is to pass through them undeterred"
(Lord Atkin in United Australia, Ltd., v. Barclay's
Bank, Ltd., [1941] A. C. 1, 29). We act in the finest
common-law tradition when we adapt and alter
decisional law to produce common-sense justice.
The same answer goes to the argument that
the change we here propose should come from
the Legislature, not the courts. Legislative action
there could, of course, be, but we abdicate our

own function, in a field peculiarly nonstatutory,
when we refuse to reconsider an old and unsatis-
factory court-made rule . . ..
Two other reasons for dismissal (besides
lack of precedent) are given in Drobner v. Peters
(supra). The first of those, discussed in many of
the other writings on the subject herein cited,
has to do with the supposed difficulty of prov-
ing or disproving that certain injuries befell the
unborn child, or that they produced the defects
discovered at birth, or later. Such difficulties there
are, of course, and, indeed, it seems to be com-
monly accepted that only a blow of tremendous
force will ordinarily injure a foetus, so carefully
does nature insulate it. But such difficulty of proof
or finding is not special to this particular kind
of lawsuit (and it is beside the point, anyhow,
in determining sufficiency of a pleading). Every
day in all our trial courts (and before adminis-
trative tribunals, particularly the Workmen's
Compensation Board), such issues are disposed
of, and it is an inadmissible concept that uncer-
tainty of proof can ever destroy a legal right. The
questions of causation, reasonable certainty, etc.,
which will arise in these cases are no different, in
kind, from the ones which have arisen in thou-
sands of other negligence cases decided in this
State, in the past.
The other objection to recovery here is the

purely theoretical one that a foetus in utero has
no existence of its own separate from that of its
mother, that is, that it is not "a being in esse."
We need not deal here with so large a subject.
It is to be remembered that we are passing on
the sufficiency of a complaint which alleges that
this injury occurred during the ninth month of
the mother's pregnancy, in other words, to a via-
ble foetus, later born. Therefore, we confine our
holding in this case to prepartum injuries to such
viable children. Of course such a child, still in the
womb is, in one sense, a part of its mother, but no
one seems to claim that the mother, in her own
name and for herself, could get damages for the
injuries to her infant. To hold, as matter of law,
that no viable foetus has any separate existence
which the law will recognize is for the law to
deny a simple and easily demonstrable fact. This
child, when injured, was in fact, alive and capable
of being delivered and of remaining alive, sepa-
rate from its mother. We agree with the dissenting
Justice below that "To deny the infant relief in
this case is not only a harsh result, but its effect is
to do reverence to an outmoded, timeworn fiction
not founded on fact and within common knowl-
edge untrue and unjustified."
The judgments should be reversed, and the
motion denied, with costs in all courts.
LEWIS, J. (dissenting). I agree with the view
of a majority of the court that prenatal injury to
a child should not go unrequited by the one at
fault.

If, however, an unborn child is to be
endowed with the right to enforce such requital
by an action at law, I think that right should not
be created by a judicial decision on the facts in a
single case. Better, I believe, that the right should
be the product of legislative action taken after
hearings at which the Legislature can be advised,
by the aid of medical science and research, nor
only as to the stage of gestation at which a foetus
is considered viable, but also as to appropriate
means-by time limitation for suit and other-
wise-for avoiding abuses which might result
from the difficulty of tracing causation from pre-
natal injury to post-natal deformity . . . .
Accordingly, I dissent and vote for affirmance.
1. Reading this case we learned almost nothing about the facts
that ga . _
rise to this lawsuit. What procedural reason explains why we do
not know ve~
many of the facts?
2 . Why did the court decide to overrule Drobner v. Peters?
3. What limitations did the court put on its holding? What
difficulties cz:.
you foresee this creating for future litigants?
4. Do you agree with the court that this issue was a matter for
judicial --
opposed to legislative change? Why?

B. Negligence
- The Massachusetts Supreme Judicial Court was faced with the
following
5o.:enario. A daughter wished to sue her mother for negligence
that stemmed
a car accident while the child was a fetus. The mother allegedly
drove
.:ar through an intersection, causing a collision with another
vehicle. The
_ -.:er was born prematurely four days later. Her premature
birth caused
- a umber of respiratory problems that plagued her with severe
breathing
0
es. Assuming the court were to follow the reasoning of the
Woods v.
- decision, how do you think the Massachusetts court decided?
Why?
. Breach
order to determine if someone has breached the duty of due
care, the
onsiders all the circumstances. In evaluating those
circumstances, the
::s of the defendant are measured by an objective standard. That
is, the jury
.-ed to consider what a reasonable person would have done.
order to prove how a reasonable professional would have acted,

the
- · · will be required to call an expert witness to testify as to the
profes-
:: standard of care and how in the expert's opinion the defendant
breached
-~dard. For example, in a case involving alleged medical
malpractice by a
=we oncologist, the plaintiff would call as an expert witness a
doctor spe-
g in that field.
-ometimes the defendant's actions violate a statute. If that
statute's purpose
• rotect the public, the plaintiff belongs to the group of persons
the statute
~eant to protect, and violation of the statute was a direct cause
of the plain-
: mjury, then some states will hold that violation of the statute
is negligence
-"'. In other states violation of such a statute is only evidence of
negligence
- .:an be rebutted. For example, assume there is a state statute
prohibiting the
f firearms to minors. A store owner sells a gun to a minor, and
the minor,
,. playing a game of "chicken," discharges the gun, injuring
another minor.
"' inj ured minor sued the store owner, he would argue that the
purpose of
rute was public protection, that he belonged to that group the
statute was

~ed to protect, and finally that the seller's violation of the
statute directly
his injury. In those states that hold that violation of such a
statute is neg-
- per se, the store owner would be found liable based on his
violation of
:arute. In those states where the presumption of negligence can
be rebutted,
_ore owner would try to introduce evidence showing that his act
of selling
=:m and its accidental discharge were too removed from each
other to make
- o hold him responsible.
USSION QUESTIONS
0 Most states have statutes prohibiting the sale of alcohol to a
minor.
_ :-ore sold alcohol to a minor and the minor while intoxicated
drove an
~obile that collided with and killed a cyclist, would the liquor
store owner
d liable as to the deceased cyclist?
On an icy, snow-covered road the plaintiff lost control of her
car, skidded
- the center line, and collided with a road grader, driven by the
defendant.
237 •

The defendant did not have the statutorily required class B
driver's license. Th
plaintiff, who was severely injured in the accident, sued the
defendant under th=-
theory of negligence per se. How do you think the court ruled
and why?
Res ipsa loquitur
"The thing speaks for
itself"; the doctrine that
suggests negligence can
be presumed if an event
happens that would not
ordinarily happen unless
someone was negligent.
Another concept that can sometimes be used by the plaintiff to
show neg-
ligence is the doctrine of res ipsa loquitur-the thing speaks for
itself. Res ip--
loquitur applies in those situations where the event ordinarily
would not ha':"'E
happened unless someone was negligent, the cause of the injury
was under the
defendant's exclusive control, and the injury was not due to the
plaintiff's actions
For example, elevators usually do not drop, panes of glass
usually do not fall ou
of windows, and planes do not crash absent someone's
negligence. In those types
of situations the court will assume that the defendant was
negligent without rh=-
plaintiff having to prove the precise nature of that negligence.

Because in each case involving breach the court must evaluate
the behavio-
given all the circumstances, the specific facts become very
important. In reacl.in.:=
the following case pay attention to the particular facts that you
think influencec
the court's determination that there was no breach of duty. Even
though
plaintiff in this case was 13, notice how the court uses the
archaic term "infan-
when referring to him.
BERGAN,}.
The infant plaintiff, a camper at defendant's
Summer camp, was injured while playing a game
supervised by defendant's personnel. The infant
was 13 years old and the game was a "water
fight" between groups of campers of similar age,
played on a grass-covered area in which oppos-
ing groups of boys doused each other with water
from cups or water pistols.
In running away from an opponent, the
infant plaintiff slipped on the grass and struck his
head on a concrete walk at the side of the grass
area. After a trial before the court without a jury,
an award of $15,000 has been made to infant
plaintiff and nominal damages to his father.
In our view of the record, this result is not
warranted. The defendant, as the operator of a
camp for boys, could not reasonably be made
responsible in damages for the consequences
of every possible hazard of play activity. It was

required, rather, to guard against dangers which
ought to have been foreseen in the exercise of rea-
sonable care.
It has not been demonstrated that the water
fight game was more hazardous than any ordinary
camp activity involving running. It was inevitable
in the game that the grass would become wet:
and, indeed, in any such game among 13-year-
old boys, that there would be tumbles and falls
whether it was wet or dry.
To impose liability in this situation is to
interdict the game itself, which in turn would so
sterilize camping activity for boys as to render it
sedentary. It would take a keen sense of the pre-
scient to envisage that in running in the game the
infant plaintiff would slip at the very point in the
area where there was a concrete walk. Nor is it,
indeed, clearly demonstrated that, in view of the
infant's plaintiff's bare feet, the wetness of the
grass played any effective part in his falling.
The Trial Judge felt that the game itself"[had]
ery aspect of innocent play"; that the supervi-
was adequate and there was no "defect in
-- e grounds on which the contest took place." (33
· . 2d 785, 786.) He felt, however, that the game
uld have been played on sand and not on grass.

retrospective view of how the camp should
have managed the game, upon which there can be
reasonable difference of opinion, is insufficient to
impose a liability on defendant, either as an evalu-
ation of the facts of the case, or as a matter of law.
The judgment for plaintiffs should be
reversed on the law and the facts and judgment
entered for defendant, without costs.
E DISCUSSION QUESTIONS
1. Why did the court find that the camp was not liable for the
boy's injury?
ou agree with that decision? Why?
2. What facts do you think were most important in helping the
court reach
::ecision?
c. Cause
In a tort action the defendant's actions must be the cause of the
plaintiff's
ries. Under one commonly used test, referred to as the "but for"
standard, it
- essary to establish that if the defendant had not acted in that
manner, the
tiff would not have been injured. This is also known as the
actual cause or
-e in fact. Sometimes there is more than one "cause" of an
injury. When there
· _ ... oncurrent causes, the court asks if any one of them was a

substantial factor
:ausing the injury. Under the "substantial factor" test, liability
is imposed if
defendant's action is shown to be a substantial factor in causing
the plain-
- injuries.
Sometimes it is impossible for the plaintiff to know who of
several defen-
-:s was responsible for the injury. Such was the situation in the
classic case of
mers v. Tice24 The two defendants and the plaintiff had gone
hunting. Both
_ dants shot at the same time, and the plaintiff was injured. The
plaintiff was
- le to show whose gun had caused the injury. The court held
that the burden
_ on the defendants to show who was liable, and absent such a
showing, both
e liable. A more modern variant of this theory was adopted by
the California
; erne Court in Sindell v. Abbott Laboratories. 25 In that case
the plaintiff had
eloped cancer, allegedly because her mother took the product
diethylstilbes-
DES) while pregnant. The plaintiff's major roadblock in proving
her case
-that approximately 200 manufacturers had produced DES, and
she had no
of knowing which specific company had produced the DES her

mother had
=n. Under a market share theory, the court held that each of the
manufactur-
ould be held responsible based on its market share at the time
the mother
· DES.
-~ P.2d 1 (Cal. 1948).
- P.2d 924 (Cal. 1980).
Actual cause
Also known as cause in
fact, this is measured by
the "but for" standard:
But for the defendant's
actions, the plaintiff
would not have been
injured.
Market share theory
A legal theory that
allows plaintiffs to
recover proportionately
from a group of
manufacturers when
the identity of the
specific manufacturer
responsible for the harm
is unknown.
Proximate cause

Once actual cause
is found, as a policy
matter, the court must
also find that the act
and the resulting harm
were so foreseeably
related as to justify a
finding of liability.
The second prong of the requirement that the defendant's
actions "ca--
the injury is known as proximate cause. For a defendant's
actions to be co-
ered the proximate cause, a natural and continuous causal
sequence m
shown between action and harm that is unbroken by any
efficient interv
cause. In deciding cases in which determining the proximate
cause is a key ; -
the courts frequently wrestle with unforeseeable consequences
and inten·=-
forces. For example, the courts are sometimes faced with chain-
reaction ,~
tions in which a person's actions lead to an event that in turn
leads to se--
other events that eventually impact other people. Is everyone
along the ch- --
be held responsible under the theory that but for their actions,
no injury w
have happened, or is it more just to say that only those actors
most imme.-1 :--
involved in the injury should be held responsible?
As you will see, this notion of proximate cause is not really
about ca
all but rather represents a policy decision that at some point a

defendant wi..
be held responsible for every consequence of every action. Just
as a pebble thr':
into a pond sends out ripples of ever-decreasing strength, every
action sen .J_
repercussions of ever-decreasing importance. At some point we
say that the -
sequences are too remote from the original action to hold the
actor res pons:-
Assume Ms. Farmer takes a lantern with her to her barn in order
to-
her cow and thoughtlessly places the lantern next to the cow,
who kicks ir
The barn catches on fire. The fire spreads to the neighbor's
field, which
catches on fire. No major harm is done except that the ensuing
group of ga
ers, as well as the multiple fire-fighting and police vehicles,
blocks traffic for
an hour. As a result, Mr. Smith, who is on his way to an
important appoin
misses the appointment and consequently is fired. Should the
neighbor be a
sue Ms. Farmer for the damage to his field? Most certainly.
Should Mr. Smi-
able to sue Ms. Farmer for his lost job? Most likely no. Why? In
both cases_
Farmer was the "but for" cause of the injury. But most courts
would proh.:
say that the foreseeability of the harm to Mr. Smith was too
remote to hole _
Farmer accountable. They might phrase this either as a lack of
duty to Mr. c-
(an unforeseeable plaintiff) or as a lack of proximate cause (an
unfores

injury). In either case the issue boils down to one of policy; that
is, is this the
of injury for which we want to hold Ms. Farmer accountable?
As you read negligence cases, you will notice that the courts
often CO""
the issues of duty of care and proximate cause. This is because
both are
on the concept of foreseeability. In order for a duty to be
present, harm to-
person must be foreseeable. However, even if the defendant's
actions causec-
harm, if that particular harm was not foreseeable, the concept of
proxir::
cause says that, for policy reasons, we will no longer hold the
defendant lia
(1) Palsgraf v. long Island Railroad Company
The following classic case is probably the most famous tort
decision
written. However, as you will see from reading the case, even
the most
legal jurists have difficulty differentiating between duty and
proximate
as both are based on the concept of foreseeability. As you read
the case.
yourself, Was the railroad not liable because it owed no duty to
Mrs. Palsgr;- -
because its employee's actions were not the proximate cause of
her harm?
- ozo, Ch.J.
Plaintiff was standing on a platform of

_,_dant's railroad after buying a ticket to go to
- - way Beach. A train stopped at the station,
- for another place. Two men ran forward
--- h it. One of the men reached the platform
-e car without mishap, though the train was
- = y moving. The other man, carrying a pack-
umped aboard the car, but seemed unsteady
=about to fall. A guard on the car, who had
.:::he door open, reached forward to help him
= d another guard on the platform pushed
- - om behind. In this act, the package was
ged, and fell upon the rails. It was a pack-
-= o ' small size, about fifteen inches long, and
- ;:overed by a newspaper. In fact it contained
= orks, but there was nothing in its appear-
-= w give notice of its contents. The fireworks
they fell exploded. The shock of the explo-
- :brew down some scales at the other end of
; latform, many feet away. The scales struck
;laintiff, causing injuries for which she sues.
The conduct of the defendant's guard, if a
g in its relation to the holder of the package,
ot a wrong in its relation to the plaintiff,
- · g far away. Relatively to her it was not neg-
- at all. Nothing in the situation gave notice
- rhe falling package had in it the potency of

-o persons thus removed. Negligence is not
able unless it involves the invasion of a
: protected interest, the violation of a right.
f of negligence in the air, so to speak, will
- · "(Pollock, Torts [11th ed.], p. 455) .... If no
-d was apparent to the eye of ordinary vigi-
=- an act innocent and harmless, at least to out-
~ seeming, with reference to her, did not take
the quality of a tort because it happened
- a wrong, though apparently not one involv-
- e risk of bodily insecurity, with reference to
someone else. "In every instance, before negligence
can be predicated of a given act, back of the act
must be sought and found a duty to the individual
complaining, the observance of which would have
averted or avoided the injury" (McSherry, C.J., in
W. Va. Central R. Co. v. State, 96 Md. 652, 666).
The plaintiff sues in her own right for a wrong per-
sonal to her, and not as the vicarious beneficiary of
a breach of duty to another.
A different conclusion will involve us, and
swiftly too, in a maze of contradictions .... One
who jostles one's neighbor in a crowd does not
invade the rights of others standing at the outer
fringe when the unintended contact casts a bomb
upon the ground. The wrongdoer as to them is
the man who carries the bomb, not the one who
explodes it without suspicion of the danger. Life

will have to be made over, and human nature
transformed, before prevision so extravagant can
be accepted as the norm of conduct, the custom-
ary standard to which behavior must conform.
The argument for the plaintiff is built upon
the shifting meanings of such words as "wrong"
and "wrongful," and shares their instability. What
the plaintiff must show is "a wrong" to herself,
i.e., a violation of her own right, and not merely
a wrong to someone else, nor conduct "wrongful"
because unsocial, but not "a wrong" to anyone ....
The risk reasonably to be perceived defines the
duty to be obeyed .... Here, by concession, there
was nothing in the situation to suggest to the most
cautious mind that the parcel wrapped in newspa-
per would spread wreckage through the station.
The judgment of the Appellate Division and
that of the Trial Term should be reversed, and the
complaint dismissed, with costs in all courts.
ANDREWS, J. (dissenting) .
What is a cause in a legal sense, still more
what is a proximate cause, depend in each case
upon many considerations, as does the existence
of negligence itself. Any philosophical doctrine
of causation does not help us. A boy throws a
stone into a pond. The ripples spread. The water
level rises. The history of that pond is altered to
all eternity. It will be altered by other causes also.

Yet it will be forever the resultant of all causes
combined. Each one will have an influence. How
great only omniscience can say. You may speak of
a chain, or if you please, a net. An analogy is of
little aid. Each cause brings about future events.
Without each the future would not be the same.
Each is proximate in the sense it is essential. But
that is not what we mean by the word. Nor on
the other hand do we mean sole cause. There is
no such thing.
As we have said, we cannot trace the effect
of an act to the end, if end there is. Again, how-
ever, we may trace it part of the way. A murder
at Serajevo may be the necessary antecedent to
an assassination in London twenty years hence.
An overturned lantern may burn all Chicago.
We may follow the fire from the shed to the last
building. We rightly say the fire started by the lan-
tern caused its destruction.
A cause, but not the proximate cause. What
we do mean by the word "proximate" is, that
because of convenience, of public policy, of a
rough sense of justice, the law arbitrarily declines
to trace a series of events beyond a certain point.
This is not logic. It is practical politics. Take Or!:"
rule as to fires. Sparks from my burning haystac·-
set on fire my house and my neighbor's. I rna
recover from a negligent railroad. He may n--
Yet the wrongful act as directly harmed the one as
the other. We may regret that the line was dra"-;::.
just where it was, but drawn somewhere it ha:.
to be. We said the act of the railroad was not cl:.=
proximate cause of our neighbor's fire. Cause .:

surely was. The words we used were simply indi:-
ative of our notions of public policy.
The act upon which defendant's liabili.
rests is knocking an apparently harmless packa!:_
onto the platform. The act was negligent. For ·
proximate consequences the defendant is liab:.e
If its contents were broken, to the owner; ·
fell upon and crushed a passenger's foot, then :
him. If it exploded and injured one in the imrn=-
diate vicinity, to him also .... Mrs. Palsgraf ,,.,-
standing some distance away. How far cannot ~
told from the record-apparently twenty-five--
thirty feet. Perhaps less. Except for the explosio-
she would not have been injured ....
Under these circumstances I cannot say as :.
matter of law that the plaintiff's injuries were
the proximate result of the negligence. That is -
we have before us. The court refused to so charge
No request was made to submit the matter tor'-
jury as a question of fact, even would that ha
been proper upon the record before us.
The judgment appealed from should ~
affirmed, with costs.
1. Why did the majority hold that there was no negligence as to
.
Palsgraf? Do you agree?
2. The dissent stated: "What we do mean by the word
'proximate' is,
because of convenience, of public policy, of a rough sense of

justice, the
arbitrarily declines to trace a series of events beyond a certain
point. This is -
logic. It is practical politics." Compare that to the quote at the
beginning o£-
chapter.
3. We omitted part of the dissent that included the following
illustra
"A chauffeur negligently collides with another car which is
filled with dyn--
B. Negligence
ough he could not know it. An explosion follows. A, walking on
the
alk nearby, is killed. B, sitting in a window of a building
opposite, is cut
: ying glass. C, likewise sitting in a window a block away, is
similarly injured.
- a further illustration. A nursemaid, ten blocks away, startled
by the noise,
untarily drops a baby from her arms to the walk." Who out of A,
B, C, and
by should recover from the chauffeur? Why?
2) Intervening cause
Sometimes after the defendant has acted negligently, another
factor inter-
- that contributes to the plaintiff's injury. If the intervening
cause is great

_gh, the court may find that the defendant's negligence is no
longer the
· ate cause. In those situations the intervening cause is deemed
to be a
eding cause, and the defendant's negligence no longer makes
him or her
~. If, however, the intervening cause was foreseeable, the court
may still find
-~fendant liable. Perhaps surprisingly, the classic case of a
foreseeable inter-
-g cause is malpractice. For example, assume a man is injured
through a
- : yclist's negligent driving. If the injured man is taken to the
hospital and
_;uries are made worse through a doctor's malpractice, the
motorcyclist will
- - onsible for all the injuries, not just those caused by the
initial accident.
cavern owners are liable for injuries caused by their intoxicated
patrons.
-eresting variant of that will be discussed in the next section of
this chap-
_en we look at two different approaches to the issue of social
host liability.
: !lowing case graphically illustrates the problem of deciding
where liability
~end.
243 •
~1ER, j.

In these consolidated personal injury cases,
-: s below appeal a final summary judg-
ontending the trial court erred in ruling
atter of law that appellees were insulated
-liability by unforeseeable independent inter-
- causes. We reverse.
On the night of September 3, 1979, Cleopatra
_ - , her husband, and her brother were trav-
= - ough drizzling rain in a 1965 Chevrolet
__ truck. Upon crossing a Seaboard Coastline
- ad track on Alternate U.S. 27 in rural Polk
._ they unexpectedly hit an accumulation
=-~r that covered both lanes of travel and
;;._proximately six inches deep. The truck
motor was doused with water, sputtered for some
distance after hitting the pool of water, and then
died. The Anglins attempted to start the motor by
pushing the truck down the road and then "pop-
ping" the clutch once the truck reached a mod-
erate speed. Approximately fifteen minutes after
their truck hit the water, during which time they
attempted in vain to push-start the truck several
times, a car driven by Edward DuBose passed the
Anglin truck heading in the opposite direction.
A short distance after passing the truck, which
was still on the road and, according to some wit-
nesses, still being pushed, Mr. DuBose turned his
car around and headed back toward the truck
to render assistance. Unfortunately, Mr. DuBose

failed to timely see the truck, hit his brakes, slid
into the rear of the truck, and pinned Mrs. Anglin
between the two vehicles, causing injury resulting
in amputation of both legs. The distance between
the pool of water and the accident scene was esti-
mated by some witnesses as approximately 200
yards, by others up to three-tenths of a mile.
On February 16, 1981, Mrs. Anglin and
her husband filed a complaint against the state
Department of Transportation and Seaboard
Coastline Railroad Company, alleging negligence
in the design and maintenance of the road and
railroad tracks by allowing the accumulation of
water on the roadway immediately adjacent to
the railroad tracks. Defendants filed a motion for
summary judgment and, in addition to numerous
depositions already taken, plaintiffs filed affida-
vits in opposition to the motion. A final summary
judgment in favor of the defendants was entered
on June 9, 1983, upon the trial judge's ruling as
a matter of law that the actions of the plaintiffs
in attempting to push-start their disabled pickup
truck and the actions of Mr. DuBose in negli-
gently losing control of his car and colliding with
the plaintiffs' truck were independent, efficient
intervening causes of the accident that were un-
foreseeable by the defendants, thereby breaking
the chain of causation between the purported
negligence of the defendants and the injury.
As a general rule, a tortfeasor is liable for all
damages proximately caused by his negligence.

The term "proximate cause" (or "legal cause,"
in the language of the standard jury instructions)
consists of two essential elements: ( 1) causation
in fact, and (2) foreseeability. See generally, 38
Fla. Jur. 2d, Negligence,§§ 29-48. Causation in
fact is often characterized in terms of a "but for"
test, i.e., but for the defendant's negligence, the
resulting damage would not have occurred. In the
present case, there is no question as to causation
in fact because "but for" the defendants' alleged
negligence in causing the pooling of water on the
highway, there would have been no accidental
stopping of plaintiff's truck and resulting injury.
The second element of proximate cause,
foreseeability, is, unlike causation in fact, a
concept established through considerations oi.
public policy and fairness whereby a defendan-
whose conduct factually "caused" damages rna.
nevertheless be relieved of liability for those dam-
ages. Thus, proximate cause may be found lackin
where the type of damage or injury that occurre
is not within the scope of danger or risk creat
by the defendant's negligence and, thus, not a rea-
sonably foreseeable result thereof .... It is no-
necessary, however, that the defendants "be able
to foresee the exact nature and extent of the inju-
ries or the precise manner in which the injuries
occur;" all that is necessary to liability is that "the
tortfeasor be able to foresee that some injury wL..:
likely result in some manner as a consequence oi.
his negligent acts." ... In the instant case, it can-
not be said as a matter of law that an injury to
plaintiff was not within the scope of danger o:r
risk arising out of the alleged negligence. In the

field of human experience, one should expect tha-
negligently permitting a pool of water on an ope~
highway would likely pose a substantial hazar
to motorists because a vehicle crashing unexpec:-
edly into the water is likely to experience a stallec
motor or other difficulty causing the vehicle to
stop on the highway, thereby subjecting its occu-
pants to the risk of injury from collision by oth~
cars.
Proximate cause may be found lackin.
however, where an unforeseeable force or actio-
occurring independently of the original negligence
causes the injury or damage. This force or actio::
is commonly referred to as an "independent, effi-
cient intervening cause." For the original negliger:-
actor to be relieved of liability under this doctrine.
however, the intervening cause must be "efficien
i.e., truly independent of and not "set in motio
by the original negligence. The trial court's rulin~
that the conduct of the plaintiffs in pushing the!:'
truck down the road was an independent, effi-
cient intervening cause of the accident was erro:-
because the existence of the pool of water
into motion the plaintiffs' subsequent actions ·-
attempting to restart the motor that was stalled
driving through the water. These actions, havin~
been "set in motion" by defendants' negligen--
- ot constitute an independent, efficient inter-
cause. Whether the plaintiffs' conduct was
_ ent and caused the injury should be submit-
- :o the jury under appropriate instructions on

~ative negligence.
The trial court correctly characterized Mr.
e's negligent operation of his car as an
~ndent intervening cause. The negligent
g of water did not cause Mr. DuBose to
_ gently operate his vehicle into collision with
;?!aintiffs.2 The trial court erred, however, in
~, as a matter of law that such intervening
~ warranted entry of summary judgment for
dants. If an intervening cause is reasonably
:seeable, the negligent defendants may be held
".Whether an intervening cause is foreseeable
- · arily for the trier of fact to decide. Only if
ilable persons could not differ as to the total
-e of evidence to support any inference that
-ervening cause was foreseeable may the
-determine the issue as a matter of law. In the
~-...,"ranees of this case (the night was dark, it
:aining, and the collision occurred in a rural
·here traffic customarily moves rapidly),
Ju.Bose come on the scene and collided with
__ ...._.u.s' stalled truck immediately after plaintiffs
"'pooled water, the question of foreseeability
--:J" occurrence would most assuredly present
issue. The fact that plaintiffs attempted to
-start their stalled truck for approximately

minutes and that Mr. DuBose collided with
- e attempting to stop and provide assistance
ot change this jury issue to a question of
_ e plaintiffs' exposure to danger was ere-
.: y defendants' negligence, and the fact that
-ion might occur while plaintiffs were extri-
hemselves from such danger up to fifteen
later presents a jury issue on foreseeabil-
t is so because the defendants need not
= :J.Otice of the particular manner in which an
v. auld occur; it is enough that the possibil-
- -orne accidental injury was foreseeable to
- · arily prudent person.
B. Negligence
Reversed and Remanded.
BooTH, J., Dissenting
245 .
We should affirm the summary judgment
entered below based on lack of proximate cause.
The chain of events here between alleged neg-
ligent act and injury is too attenuated and is
broken, in fact, by the independent, intervening
actions of others.
For the purpose of this appeal, we assume
that defendants were negligent in maintaining
a depression on a rural roadway, a depression

which, in the aftermath of Hurricane David,
was filled with six inches of water. It would be
foreseeable that a driver who unexpectedly tra-
versed such a depression in the road could lose
control of his vehicle, causing an accidental injury
to himself or others. Stalling and the immediate
consequences thereof are also not unforeseeable.
Other results of the puddle could be termed as
"foreseeable" in a philosophical, but not a legal,
sense. For example, the disabled vehicle could
have been struck by lightning, or the occupants
could have been robbed or become ill but unable
to seek medical care. In each instance, it could be
said that, but for the stalling of their car caused
by the defendant these subsequent events would
not have occurred. Although there would be
cause and effect relationship, such consequences
would generally not be within the scope of the
risk created by the negligent party who caused
the vehicle to become immobile. The law does not
impose liability because of the concept of "proxi-
mate cause," as stated in Prosser and Keeton:
In a philosophical sense, the consequences of an act
go forward to eternity, and the causes of an event
go back to the dawn of human events, and beyond.
But any attempt to impose responsibility upon
such a basis would result in infinite liability for all
wrongful acts, and would "set society on edge and
fi ll the courts with endless litigation." As a practi·
cal matter, legal responsibility must be limited to
those causes which are so closely connected with
the result and of such significance that the law is
·:would be otherwise if, for example, Mr. DuBose had driven
through the pool of water and failed to stop because his brakes

and ineffective.
justified in imposing liability. Some boundary must
be set to liability for the consequences of any act,
upon the basis of some social idea of justice or
policy.
causes which are possible but not probable . .
Plaintiff's injury occurred more than a qn=--
ter of an hour after, and three-tenths of a
down the road from, the puddle. The a
dent occurred after, and as the result of, n~~-
ligence of others, each acting independently
defendants.
Therefore, I would agree with the majority
that there could be a jury question as to causation
in fact. But, as to proximate cause, in this case at
least, the principle is one of law ....
The issue, then, is the scope of the legal
duty to protect the plaintiff against intervening
The law does not impose unlimited liau -
ity for all consequences that may result from
puddle of water on the road.
1. Do you agree with the majority or the dissent? Why?
2. Two years later, in 1987, this decision was reversed by the
Sup!'

Court of Florida in Department ofTransp. v. Anglin, 502 So. 2d
896, 900 -
1987) (as they so quaintly put it in Florida, "[W]e quash the
decision below -
remand for proceedings consistent with this opinion"). On what
basis do
think the court reached its decision?
(3) Duty of care to third parties
As we have seen, sometimes the court will hold a person
responsible :
the actions of someone else. For example, traditionally a bar
owner can be -:..
responsible if an intoxicated patron negligently injures a third
party. Liabili_
based on what are known as dramshop laws. In a sense the bar
owner is -:..
responsible for the patron's negligence.
A related and emerging area of the law is the degree of
responsibili.
social host has for the actions of an intoxicated guest. In some
states the co
have refused to find liability, stating that such a change in the
law is better le:=- ·
the legislature. For example, in Charles v. Seigfried, 26 Alan
Seigfried held a p=
at which he provided drinks for everyone, including 16-year-old
Lynn Sue. -"1
knew of Lynn Sue's "advanced state of drunkenness," knew that
she had dn
her own car to the party, and allowed her to leave the party
while still extr
intoxicated. While driving, Lynn Sue died in a fatal collision. In

refusing to -
the host. liable for Lynn Sue's death, the court noted that "the
drinking o: -
intoxicant, not the furnishing it, is the proximate cause of the
intoxication -
the resulting injury. As a matter of public policy, the furnishing
of alco
beverages is considered as too remote to serve as the proximate
cause o: -
injury." 27 The court also based its decision on the belief that
such a change in -
law should come from the legislature.28
26651 N.E.2d 154 (Ill. 1995).
27Id. at 157.
28Id. at 160.
B. Negligence
-e Internet contains many sources for medical information. For
example, you
fi nd current medical news at www.medscape.com, and there are
several
_ :es that have free on-line medical dictionaries.
Other courts have disagreed. For example, the Massachusetts
Supreme
- ·al Court thought it was appropriate for the court, and not the
legislature,
-= -kle the problem of social host liability. In McGuiggan v.
New England
- . hone & Telegraph Co.19 the court concluded that "in certain

circumstances
·ry properly could be imposed on such a social host."30 Those
circumstances
"" when the social host knew or should have known the guest
was drunk,
· gly gave the guest an alcoholic drink anyway, and knew or
should have
that the guest would operate a motor vehicle.31 The court noted
that
hich social host liability was acknowledged as a possibility or
as a fact has been
ed in the past decade. This trend toward imposing liability is no
doubt a response
:!:te greater concern of society in recent years regarding the
problems of drunken
mg. It is understandable that the law of torts, which in many
aspects measures one's
: by what is reasonable conduct in the circumstances, should
begin to respond to
's increasing concern. 32
d. Harm
_-s we have seen, the purpose of negligence law is to
compensate the
_ __.._.'-L' for any harm suffered. Traditionally, however, that
harm could include
onal distress only if the plaintiff also suffered physical harm
and only if
::..aintiff was in the "zone of danger" created by the defendant's

actions.
"':ore, a parent standing at her kitchen window, seeing her child
negligently
~-- by a speeding motorist, could not recover for her emotional
distress.
· a landmark decision, Dillon v. Legg,33 the California Supreme
Court
:Jat a mother could recover for her emotional distress caused by
seeing her
_ -er negligently injured. This was the result even though the
mother was
the zone of danger," as she never feared for her own safety.
Since Dillon
state courts have followed the lead of the California courts by
adopt-
. " tart of negligent infliction of emotional distress. Others have
expanded
247 •
Contributory negligence
Negligence by
the plaintiff that
contributed to his or
her injury. Normally, it
is a complete bar to the
plaintiff's recovery.

on the Dillon holding, both as to how contemporaneous the
injury and ci:e
plaintiff's emotional distress must be and as to who beyond
parents and childre=
is covered. For example, in Leong v. Takasaki34 a ten-year-old
boy was allowec
to recover for nervous shock and psychic injuries after he
witnessed his ste:;:-
grandmother's death, when she was struck by the defendant's
vehicle. In 19-9
the New Hampshire Supreme Court held that the trial court
erred in dismissing :..
case where the father did not hear the accident that harmed his
daughter but ,,-;:
near enough to immediately become aware of the accident and
go to her aidY
DISCUSSION QUESTION
10. A woman sees her live-in boyfriend run over by a car and
killed. Shou_.:
she be allowed to sue for emotional distress? Why?
2. Defenses to Negligence
In representing the defendant in a negligence case the attorney
usually attem~-~
to rebut the plaintiff's evidence on as many of the above four
elements as possib:=
In other words, the defense tries to show that no duty was owed
to the plainti....:
that no breach occurred, and that the defendant's action was not
the cause of :.ix
plaintiff's injuries. Another approach to defending such cases
involves raising--
affirmative defense, in which it is admitted that negligence was

established, bu: -
is argued that the defendant should not be held liable because of
actions taken:
the plaintiff. Traditionally, the two major affirmative defenses
were contribute
negligence and assumption of the risk. Today most states have
adopted a fo:-
of comparative negligence whereby the plaintiff's own
negligence is comparee-
that of the defendant.
a. Contributory Negligence
Historically, the common law doctrine of contributory
negligence app."=
whenever the plaintiff contributed to his or her own injuries or
otherwise fai ~
to protect him- or herself from risks that were foreseeable. In
other words
was the plaintiff's breach of a duty to protect him- or herself
that was the pr,
mate cause of the injuries. The defendant therefore was relieved
of any liab·
connected with the defendant's negligence, no matter how great
the defenda::;
negligence and how slight the plaintiff's contributory
negligence. Because
the harshness of this result, most states have adopted a form of
compar
negligence.
b. Comparative Negligence
The doctrine of contributory negligence prevented a plaintiff
from ~-
compensated for very serious injuries, even when the injuries

resulted from ra
34520 P.2d 758 (Haw. 1974).
35Corso v. Merrill, 406 A.2d 300 (N.H. 1979).
~eaches when compared to the extreme negligence of the
defendant. As
above, in response to the perceived unfairness of this situation,
all but
of states, through statutes and court decisions, have moved to
adopt
.::z:::;::;::;;LIIV· e negligence. Under comparative negligence,
negligence is measured
- of percentages, and damages are distributed proportionately.
There are
:ernative theories of comparative negligence:
• _ plaintiff can recover when the plaintiff's negligence is
slight but may
~or recover when the plaintiff's negligence is gross. This is
difficult to
measure and currently only one state follows this approach.
_ l:nder a "pure" comparative negligence statute a plaintiff can
recover
actual damages less a percentage, calculated as the amount of
neg-
·gence attributable to the plaintiff. In the 12 states that follow
this
approach, a plaintiff can recover something even if 99 percent

respon-
sible for the injuries.
'nder modified comparative negligence, a plaintiff's recovery is
reduced
· y the percentage of the plaintiff's own negligence if the
defendant's
egligence is greater than or equal to that of the plaintiff. In the
11
s-tates that require the defendant's negligence to be greater than
that of
:he plaintiff, the plaintiff can recover a percentage of the
damages so
_ong as the plaintiff is responsible for no more than 49 percent
of the
arm done. In the remaining 22 states, to recover a percentage of
the
damages, the plaintiff must be no more than 50 percent
responsible.
sumption of the Risk
Comparative negligence
A method for measuring
the relative negligence
of the plaintiff and
the defendant, with a
commensurate decrease
in the compensation for
the injuries.
..::other traditional affirmative defense involves the concept of
assumption Assumption of the risk
_ ' According to this doctrine a plaintiff may not recover for an

injury Voluntarily and
=- as a result of voluntarily subjecting himself or herself to a
known dan- knowingly subjecting
--essful use of this defense requires proof that the plaintiff
knew about the oneself to danger.
- :JS nature of the situation before voluntarily exposing himself
or herself
- danger. It is argued, for example, that when people choose to
attend a
....,. __ game, they assume the risk of being hit by a foul ball.
Take another
_ ~ If you know that a parking lot is covered with ice and yet
you proceed
across it, the court will probably say that you assumed the risk
of any
-om falling on the ice.
- ·ce that assumption of the risk involves a subjective standard.
The
_,.,.,_~~..: must voluntarily and knowingly assume the danger;
that is, he or she
_ ally understand the risk. This can be contrasted with
contributory or
-~:ive negligence, which are measured not by what the plaintiff
was think-
- y what a reasonable person would have done.
- er the traditional view, assumption of the risk, like
contributory neg-
":·as a complete bar to recovery. Today many states have
eliminated

_......_,_~on of the risk as a separate defense, having subsumed
it under the
--~~"of comparative negligence. This eliminates many of the
proof problems
ing to prove what the plaintiff was actually thinking) and the
problems
Exculpatory clause
A provision that
purports to waive
liability.
of categorizing specific behavior as either negligence or
assumption of the
For example, if you get into a car being driven by someone you
know is into~-
icated, is that an unreasonable act on your part (contributory
negligence.
assumption of the risk (knowingly subjecting yourself to a
dangerous situatior
In those states that have subsumed assumption of the risk under
compara ·
negligence, the plaintiff's recovery can be reduced either if it
can be shown tha- -
reasonable person would have acted differently or if the
plaintiff actually kn
and voluntarily assumed the risk.
An example of an express assumption of the risk is the signing
of a wai
of liability. Such waivers are frequently called exculpatory

clauses because t
purpose is to relieve tortfeasors of liability. In certain
circumstances the cou.:_,
have upheld such waivers, particularly when the parties are of
fairly equal
gaining power and the event involves inherent danger, such as
skydiving -~
mountain climbing. Increasingly, however, courts are refusing
to enforce s··-
waivers. Sometimes the refusal is based on the public policy
argument that-
parties were of very unequal bargaining power. Other times the
courts h
invalidated such waivers by requiring specific language or by
finding an ambit:
ity and construing the language against the drafter. In addition,
the courts us_
ally disallow exculpatory clauses in cases of gross negligence.
An example of the recent trend disfavoring releases is the
Virginia Supr
Court case of Heitt v. Lake Barcroft Community Ass'n.36 The
plaintiff was injur'--
while participating in an athletic event sponsored by a
homeowners' associa ·
During the swimming portion of the event he dove into the
water, struck
head, and sustained severe injuries, leaving him a quadriplegic.
Prior to ente
the event, he had signed an entry form that provided in part:
In consideration of this entry being accepted to participate in
the Lake Barcroft Teflo:;
Man Triathlon I hereby ... waive, release and forever discharge
any and all rights an.:
claims for damages ... for any and all injuries suffered by me in

said eventY
The Virginia Supreme Court held that "an agreement entered
into prior to inj
releasing a tortfeasor from liability for negligence resulting in
personal inj rn:;
void because it violates public policy."38 The court
distinguished prior decis·
upholding waivers as having been limited to situations
involving only pro
damage.
d. Immunities
For policy reasons certain defendants, even though negligent,
are imm
from suit. Traditionally, immunity meant a complete bar to
recovery. Rece::
however, the courts have been reexamining many immunities
and in
instances limiting their effect or even eliminating them entirely.
For exam;
many states have completely removed the bar that prevented
spouses from
36418 S.E.2d 894 (Va. 1992).
37Id. at 895.
Jsrd.
B. Negligence
sue each other or have eliminated spousal immunity in specific
situations,
= motor vehicle accidents. Similarly, some states have

eliminated parental
I:==rut· -:y, thereby allowing children to sue their parents in
tort actions. The doc-
- : charitable immunity has also been abolished or limited in
most states.
e doctrine of sovereign immunity prohibits suits against the
government
t the government's consent. It can be traced back to the concept
of the
- .. right of kings and the idea that the king could do no wrong.
In modern
:ederal and state governments have passed legislation that
modifies this
_ For example, at the federal level Congress has enacted the
Federal Tort
- Act (FTCA).39 Under that statute someone can sue the
government for
caused by a government employee's negligence but not for an
intentional
-for something that resulted from a discretionary function.
These limita-
are a cause for much litigation, as it is often difficult to
determine whether
cular action is the result of negligence or an intentional act and
whether
·on falls within a "discretionary function." Similarly, on the
state and local
=-overnmental acts are often protected from suit if the public
employee's
- involved basic policy choices.

- circumstances where one is prohibited from suing the
government for
loyee's actions, he or she may sometimes be able to sue the
govern-
- ificial directly. Limitations apply here as well. For example,
judicial and
--=-=---_.·ve officials have an absolute privilege against being
held liable for any
-- performed as part of their official duties. The reasoning
behind this
:e bar is that such officials must be able to perform their daily
work
.=- constant fear of being sued. Other administrative personnel
receive
- ualified immunity. In order to recover damages under the
terms of this
ed immunity, the plaintiff must prove that the defendant acted
in bad
~- the following case the police stopped an intoxicated driver.
An eyewit-
-:ed that the driver "Fuller was swaying, unsteady on his feet,
holding his
-P to his head, moving back and forth and holding onto the top
of the
- steady himself." The police officer talked to Fuller for about
one minute,
- onduct a field sobriety test, and did not detain him. Ten
minutes later,
_ at approximately 75 miles per hour, Fuller's car collided head-
on with a

g driven by Mark Irwin. The collision killed Fuller, Mark Irwin,
and a
=er in Irwin's car and seriously injured Debbie Irwin and her
son. When
:-nin brought suit against the town, the court had to determine
whether
should be held liable for the police officer's actions.
Massachusetts has
:laims act that is similar to the federal statute in that it prohibits
lawsuits
a "discretionary function."
S 1346(B) (2012).
251 •
The plaintiffs commenced this action against
the defendant town of Ware (town). They charge
that police officers of the town negligently failed
to take into protective custody a motor vehicle
operator who was under the influence of intoxi-
cating liquor and who subsequently caused an
accident resulting in harm to the plaintiffs. The
jury returned special verdicts for the plaintiffs in
the amount of $873,697.
2. Applicability of G.L. c. 258, § 2.
Whether the town is liable to the plaintiffs

for the negligence of its police officers depends
initially upon the scope of G.L. c. 258, the so-
called Massachusetts Tort Claims Act (Act). As
to scope, the Act provides in relevant part that
"[p ]ublic employers shall be liable for injury or loss
of property or personal injury or death caused by
the negligent or wrongful act or omission of any
public employee while acting within the scope of
his office or employment, in the same manner and
to the same extent as a private individual under
like circumstances." G.L. c. 258, § 2, as appearing
in St. 1978, c. 512, § 15. The Act exempts from
such liability, however, "any claim based upon the
exercise or performance or the failure to exercise
or perform a discretionary function or duty on the
part of a public employer or public employee, act-
ing within the scope of his office or employment,
whether or not the discretion involved is abused."
G.L. c. 258, § 10(b). As a threshold matter, there-
fore, we must determine whether the challenged
actions of the police officers were outside the Act
as "discretionary functions" within the meaning
of G.L. c. 258, § 10(b).
The town contends that the statutes set-
ting forth an officer's authority with respect to
intoxicated motor vehicle operators "indicate
that the arrest of Fuller, assuming, arguendo.
that he was intoxicated, was discretionary and
not mandatory." Whether an act is itself discre-
tionary, of course, does not turn on whether tha
act was negligently or nonnegligently performed.
Therefore, we need not consider how the act was
performed in this case to determine whether i
is discretionary. Rather, we must address only a

more general question: Is the decision of a police
officer to remove from the roadways a driver who
he knows or has reason to know is intoxicated a
discretionary act within the meaning of G.L. c.
258, § 10(b). We conclude it is not.
... In Whitney v. Worcester, 373 Mass.
208, 219 (1977), we noted that immunity for
discretionary functions did not extend to all actS
requiring judgment because "the performance o-
all functions involves the exercise of discretio
and judgment to some degree." We describe
discretionary acts as those "characterized by the
high degree of discretion and judgment involve
in weighing alternatives and making choices
with respect to public policy and planning." In
contrast, we explained that not counted among
such acts are those which involve "the carrying
out of previously established policies or plans.-
Id. at 218.
No reasonable basis exists for arguing that
police officer is making a policy or planning judg-
ment in deciding whether to remove from the roaci-
ways a driver who he knows is intoxicated. Rathe~
the policy and planning decision to remove sucl:
drivers has already been made by the Legislature.
["Any officer authorized to make arrests ... rna.
arrest without warrant any person ... who the
officer has probable cause to believe has operatec
or is operating a motor vehicle while under the
influence of intoxicating liquor," G.L. c. 90, § 21._
This is not to say every harm resulting from rh~

.:onscious failure of a police officer to remove an 7.
Conclusion.
toxicated driver from the roadway will give rise
:o liability for the public employer. There may be
5iruations in which an officer's failure to remove
.7 intoxicated driver from the roadway will not
..ead to such liability. Where liability does not
~ult, however, it will be because some element of
- e tort alleged will not have been established. It
->ill not be because the act of the officer is discre-
In sum, we conclude that, under G.L. c.
258, a town or city may be held liable in damages
for the negligent failure of its police officers to
remove from the highway a motor vehicle opera-
tor who is under the influence of intoxicating
liquor and who subsequently causes injuries or
death to other travelers.
nary within the meaning of G.L. c. 258, § 10(b).
[Authors' Note: The case was remanded for
a new trial because of erroneously admitted evi-
dence regarding Fuller's blood alcohol content.]
E DISCUSSION QUESTIONS
1. Why didn't the court think the police officer's actions fell
under the
-cretionary functions" exception?
2. This case established that the defense of sovereign immunity
was not

ble in these circumstances. However, to recover, the plaintiff
still had to
- lish that the police officer was negligent. What elements of the
negligence
do you think might give the plaintiff problems?
3. Many charitable and sovereign immunity statutes cap the
allowable
ery. In the Irwin case the statute provided that the public
employer would
- ne liable "for any amount in excess of one hundred thousand
dollars."
e were four plaintiffs in this case. How do you think the parties
argued this
_ age should be interpreted?
eckless Behavior
-erween the two main categories of torts that we have discussed
thus far,
·anal torts and negligence, is an area of liability variously
described as
- negligence, or willful or wanton behavior, or recklessness.
The courts dis-
- as to whether these are forms of "super negligence" or are
more akin to
·anal behavior. They also disagree as to whether they represent
different
- states or are simply different ways of describing the same
thing.40

While there is a great deal of confusion as to the exact meaning
of these
- all three imply a conscious or knowing disregard of an
unreasonable and
-- rial risk of serious bodily harm to another. While the person
may not wish
.:se harm, he or she is aware of the potential for harm and
proceeds any-
different to the consequences. Unlike negligence, which
requires merely
-onable behavior, recklessness requires a "conscious choice of a
course of
with knowledge or reason to know that it will create a serious
danger to
~ v. Food Lion, Inc., 549 S.E.2d 867, 870 (N.C. 2001) ("gross
negligence requires a finding that
is willful, wanton, or done with reckless indifference").
Recklessness
Disregarding a
substantial and
unjustifiable risk that
harm will result.
others."41 As the conduct involves some level of conscious
intent, punitive
ages may be available. Also, most courts have held that a
plaintiff's contribu:
negligence may not be used as a defense when the defendant has

acted in a
ful, wanton, or reckless manner.42 Therefore, a plaintiff who
has negligently
tributed to his or her own injury may try to prove that the
defendant's a
were willful, wanton, or reckless.
Because the courts have not been able to clearly define
recklessness
decidedly difficult to know where negligence ends and
recklessness begins
in turn, where reckless behavior ends and intentional behavior
begins. For eX2-
ple, if a golfer carelessly forgot to check to see if anyone was in
the vicinity be~
taking a shot, that might be negligence. However, if that golfer
had looked, --
a person in the line of sight, yelled a warning, and then taken
the shot an~ .
before the person had a chance to move, some courts would find
the beha
to have been reckless but others would still see it as merely
negligent. Fin
if the golfer was angry with another golfer and deliberately
aimed his sho:
the other player intending for the ball to hit her, then the
golfer's actions wo·
amount to either an intentional tort or recklessness. To establish
an intentio-
tort, the plaintiff would have to prove the defendant intended
for the ball to
her. Otherwise, if it was proven that the defendant was merely
trying to frig}::
her, but was indifferent as to whether the ball would hit her, the
court will ;:_
the defendant was reckless.

Earlier in this chapter in discussing defamation, we saw one
example
when courts apply a recklessness standard. When a public figure
sues for d .. -~
mation, there must be proof that the publisher of the statement
acted in rec
disregard as to whether the statement was false or not. You will
also see nY•-
lessness, and the other terms listed above, used in statutes that
limit the lia
ity of drivers who through their carelessness injure nonpaying
passengers. -
purpose behind these "guest statutes" is to protect drivers who
voluntarily
transportation to nonpaying guests, unless the driver 's conduct
can be class· -
as at least reckless. Also, in some states, trespassers cannot sue
for injuries UG..
the landowner acted in a willful, wanton, or reckless manner.
One of the r;:
interesting areas requiring the finding of at least reckless
behavior is in the ~
of sport law.
As anyone who has ever seen or played in a sporting event
knows, phys -
contact is an expected part of the game and physical injury is
always a poss:;-
ity. Sometimes individual players engaged in vigorous
competition go bey
what is expected and violate the rules of the game. Hence, we
have yellow ca-
in soccer, the penalty box in hockey, and fouls in basketball.43
But when a p:-
exceeds the normal rules of play and injures another player,

should the offen
player suffer more than the sanction imposed by the rules of the
game? Sh
the offending player also be held accountable in a court of law
and be req
41 Schick v. Ferolito, 767 A.2d 962,969 (N.J. 2001) (emphasis
added).
42Restatement (Second) of Torts § 482(1) (1965) ("[A]
plaintiff's contributory negligence does
recovery for harm caused by the defendant's reckless disregard
for the plaintiff's safety.").
43Jaworski v. Keirnan, 696 A.2d 332, 337 (Conn. 1997).
B. Negligence
.:-~:'" damages? If the answer is yes, the question becomes: On
what basis should
·ry be found? Most courts have answered that question by
finding that to
-~.d accountable a player must act either intentionally or
recklessly. A finding
- re negligence will not be enough to require the offending
player to pay the
-ed player damages.
The majority of courts that limit liability to intentional or
reckless behavior
for two basic policy reasons. First, because some degree of
physical contact
- erent in most sporting competitions, courts are concerned
about the poten-

- ood of litigation if participants could sue co-participants for
every injury
_ ·ed. Courts envision a world wherein "every punter with
whom contact is
- -=- every midfielder high sticked, every basketball player
fouled, every batter
- · by a pitch, and every hockey player tripped" 44 files a
lawsuit. Second, the
~ want to encourage vigorous participation by the athletes. They
believe
-:he fear of litigation would dampen the athletes' competitive
spirit, resulting
- vigorous play.
However, these policy reasons are also balanced by a concern
for the safety
- e players, so there must be some restraints on what can occur
during an
- ·c competition. As one court has noted:
~e problem of imposing a duty of care on participants in a
sports competition is a dif-
-ult one. Players, when they engage in sport, agree to undergo
some physical contacts
::i h could amount to assault and battery absent the players'
consent. Restatement
cond) of Torts§ 50 comment b (1965). The courts are wary of
imposing wide tort
: · ility on sports participants, lest the law chill the vigor of
athletic competition.
_ ·=-ertheless, some of the restraints of civilization must
accompany every athlete on
~e playing field. [R]easonable controls should exist to protect
the players and the

~ e.4s
"' competing policy concerns have resulted in most courts
stating that co-
ipants can be found responsible for injuries they cause, but only
if they
::acting with the intent to harm or at least recklessly with a
conscious deci-
:o proceed despite the potential for causing harm.
Earlier in this chapter in the case of Knight v. Jewett, you saw
how difficult
-- be to prove that a participant intentionally harmed another
participant.
ou will recall, Ms. Knight was not able to maintain her claim
for assault
- attery because she was not able to prove that Mr. Jewett
intended to step
-"'r finger. However, in her complaint, she had also alleged that
his behavior
;_rd her was negligent, that is, that his "rough play" amounted
to unreason-
behavior. On further appeal, the California Supreme Court
affirmed the
~ · sal of her battery claim and addressed her negligence claim.
Note the stan-
:. of conduct the court thought should be applied to her case and
the reasons
.:ourt advanced for denying her negligence claim.
- v. Clark, 537 N.E.2d 94, 96 (Mass. 1989).

255 •
... As a general rule, persons have a duty to
use due care to avoid injury to others, and may be
held liable if their careless conduct injures another
person. Thus, for example, a property owner
ordinarily is required to use due care to eliminate
dangerous conditions on his or her property. In
the sports setting, however, conditions or conduct
that otherwise might be viewed as dangerous
often are an integral part of the sport itself. Thus,
although moguls on a ski run pose a risk of harm
to skiers that might not exist were these configu-
rations removed, the challenge and risks posed by
the moguls are part of the sport of skiing, and a
ski resort has no duty to eliminate them. In this
respect, the nature of a sport is highly relevant in
defining the duty of care owed by the particular
defendant.
Although defendants generally have no legal
duty to eliminate (or protect a plaintiff against)
risks inherent in the sport itself, it is well estab-
lished that defendants generally do have a duty to
use due care not to increase the risks to a partici-
pant over and above those inherent in the sport.
Thus, although a ski resort has no duty to remove
moguls from a ski run, it clearly does have a duty
to use due care to maintain its towropes in a safe,
working condition so as not to expose skiers to
an increased risk of harm. The cases establish that
the latter type of risk, posed by a ski resort's neg-

ligence, clearly is not a risk (inherent in the sport)
that is assumed by a participant.
In some situations, however, the careless con-
duct of others is treated as an "inherent risk" of a
sport, thus barring recovery by the plaintiff. For
example, numerous cases recognize that in a game
of baseball, a player generally cannot recover if
he or she is hit and injured by a carelessly thrown
ball, and that in a game of basketball, recove .
is not permitted for an injury caused by a care-
lessly extended elbow. The divergent results of the
foregoing cases lead naturally to the question ho
courts are to determine when careless conduct o:
another properly should be considered an "inher-
ent risk" of the sport that (as a matter of law) ·
assumed by the injured participant.
In the present case, defendant was a partici-
pant in the touch football game in which plaintiii
was engaged at the time of her injury, and thus the
question before us involves the circumstances uncle
which a participant in such a sport may be helci
liable for an injury sustained by another participan
The overwhelming majority of the cases.
both within and outside California, that have
addressed the issue of coparticipant liability in
such a sport, have concluded that it is improper to
hold a sports participant liable to a coparticipan·
for ordinary careless conduct committed during
the sport-for example, for an injury resulting
from a carelessly thrown ball or bat during a
baseball game-and that liability properly rna.
be imposed on a participant only when he or she

intentionally injures another player or engages i.e
reckless conduct that is totally outside the range
of the ordinary activity involved in the sport.
Accordingly, we conclude that a participan:
in an active sport breaches a legal duty of care
to other participants-i.e., engages in condu~ .
that properly may subject him or her to financia:
liability-only if the participant intentionall.
injures another player or engages in conduct tha::
is so reckless as to be totally outside the range o:
the ordinary activity involved in the sport/
7[T]he limited duty of care applicable to coparticipants has
been applied in situations involving a wide variety of active
sports, rang:i:::;f:
from baseball to ice hockey and skating. Because the touch
football game at issue in this case clearly falls within the
rationale of
rule, we have no occasion to decide whether a comparable
limited duty of care appropriately should be applied to other
less acri _
sports, such as archery or golf. We note that because of the
special danger to others posed by the sport of hunting, past
cases general:
have found the ordinary duty of care to be applicable to hunting
accidents.
As applied to the present case, the forego-
::: egal principle clearly supports the trial court's
=:- of summary judgment in favor of defendant.

--~ declarations filed in support of and in oppo-
n to the summary judgment motion establish
- defendant was, at most, careless or negligent
- ocking over plaintiff, stepping on her hand,
properly can be characterized as "reckless," the
conduct alleged in those declarations is not even
closely comparable to the kind of conduct-con-
duct so reckless as to be totally outside the range
of the ordinary activity involved in the sport-that
is a prerequisite to the imposition of legal liability
upon a participant in such a sport ....
-- inj uring her finger. Although plaintiff main-
- that defendant's rough play as described in
eclaration and the declaration of Andrea Starr
ISCUSSION QUESTIONS
The judgment of the Court of Appeal,
upholding the summary judgment entered by the
trial court, i~ affirmed.
. Do you agree with the court that it is more appropriate to
apply a
---...:-,=•cness rather than a negligence standard to injuries that
occur as part of an
;:: competition?
.: In footnote 7, the court notes that a different rule should be
applied to
·ports, such as archery. Why?
& you agree wH:J:i tne court that Mr. Jewett's actions were not

so
utside the range of the ordinary activity involved in the sport"
as to be
-e!l reckless?
:Jo you think it would have mattered if Mr. Jewett and Ms.
Knight had
- a set of rules prior to the start of the game and then Mr. Jewett
had
e of rules when he knocked down the plaintiff?
:Jo you think the same level of responsibility should apply no
matter
~ 'evel of play? That is, do you think the courts should apply a
different
-- -o recreational play, high school sports, college teams, and
professional
Tom was golfing with a friend when he was hit in the eye by an
...._. _ _ _ ..._.ced mulligan (second shot). Do you think he
should have to prove
er golfer acted recklessly or only negligently? In other words,
do you
-situation is analogous to or distinguishable from the Knight
case?
- ~n the same day the California Supreme Court decided Knight
v. jewett,
~ with the following set of facts: While waterskiing backwards
and
-~~- on a river, the plaintiff was injured when his friend drove
the boat

: -o shore and the plaintiff hit a tree limb. How do you think the
court
.--..~--: "X11 y?
.mary, by their very nature athletic competitions involve
physical
.::erween opposing players and even between players on the
same team.
rrs acknowledge that some degree of aggressiveness is essential
to vig-
petition. Therefore, most courts have held that they will not
impose
ed on mere negligence on the part of a player when that player
causes
another player during an athletic competition. Instead the player
must
have acted in an intentional or reckless manner. This promotes
the dual
concerns of limiting litigation and encouraging vigorous
competition.
Remember that even in those situations where the plaintiff need
only p:-
that the defendant was negligent, the plaintiff may still wish to
introduce
dence that the defendant's actions went so far beyond
negligence as to con~~-
reckless behavior. This is because at least some courts have

found that
punitive damages should not be applied to the results of
negligent behavior,-~
can be awarded in cases involving recklessness. Also, several
courts have .:.
that if the plaintiff can show that the defendant acted recklessly,
the plain--
contributory negligence cannot be used as a defense.
In Figure 7-3 we have summarized our discussion of negligence
law. I£
next section we discuss the third main area of tort law, strict
liability.
C. STRICT LIABILITY
Both negligence and intentional torts impose liability for
improper behavior:.
the former the injury is caused by carelessness, and in the latter
it is intentio,..
Plaintiff's Prima Facie Case
1 . The defendant must owe a duty to the
plaintiff to act reasonably, and
2. the defendant must have breached that
duty
3. causing (i.e., being both the cause in
fact and the proximate cause)
4. the plaintiff harm.
Figure 7-3 Negligence Summarized
Defenses

1. Contributory negligence
The plaintiff fails to use due care;
traditionally, this has been a complete
bar to the plaintiff's suit. Most states ha~ ::
abandoned contributory negligence a
have adopted comparative negligence.
2. Comparative negligence
The plaintiff fails to use due care; the
plaintiff's negligence is compared to the
defendant's negligence, and damages a:=
reduced accordingly.
3. Assumption of the risk
The plaintiff knowingly and voluntaril
subjects himself or herself to danger;
traditionally, this has been a complete
bar to the plaintiff's suit. Today
assumption of the risk has been
eliminated in many states that have
adopted comparative negligence.
4. Immunity
This complete bar to a lawsuit is
based on policy considerations, such
as preventing suits between family
members and protecting charitable
organ izations.
C. Strict Liability 259 •
th cases the tortfeasor acts in an unreasonable manner and
violates an

-~ " lished standard of care. When the concept of strict liability
is applied, how-
=- a person is held responsible for injuries that resulted from
actions that were
- ecessarily unreasonable and that did not violate a standard of
due care. In
words, it imposes liability even though the defendant is not at
fault. Rather
- .:ourts impose liability for the policy reason that, as between
the defendant
- ilie injured plaintiff, the defendant is in a better position to
absorb the costs
- e injury. The courts have applied the doctrine of strict liability
in two situa-
--: those involving ultrahazardous activities and products
liability.
When persons engage in activities that are inherently dangerous,
they
_d be responsible for any injuries that result, even though the
activities may
--:Tied out in the safest and most prudent way possible.
Examples of areas in
- str.:.Ct AYibiNtr 1T<fS" been imposed tnrougn tne common
law include the use
losives, the building of dams, and the keeping of wild animals.
In recent
the doctrine of strict liability has also been widely applied in
product liabil-
:ases, in which the manufacturer is held liable for defects that
occur in the
ct. A product is considered to be defective if it is unreasonably
dangerous

.::se in the ordinary manner.
trahazardous Activities
~ Restatement of the Law of Torts, Second lists the six factors
that courts
in determining whether a defendant should be held strictly
liable when
__ · g in dangerous activities. Not all six factors have to be
present. However,
of the factors must be present for a court to feel justified in
imposing
·ability-that is, liability even though the defendant did not
intentionally
'gently cause the harm. The six factors listed in Section 520 are
a) existence of a high degree of risk of some harm to the person,
land or
chattels of others;
b ) likelihood that the harm that results from it will be great;
) inability to eliminate the risk by the exercise of reasonable
care;
d) extent to which the activity is not a matter of common usage;
e) inappropriateness of the activity to the place where it is
carried on; and
extent to which its value to the community is outweighed by its
danger-
ous attributes. (Emphasis added.)
:be classic case for finding strict liability is the use of dynamite

in blasting.
:-arionale for finding strict liability in such cases is that
blasting as a busi-
.:arries with it extreme risks that cannot be guarded against.
Therefore, as
=en a for-profit company that chooses to engage in blasting and
an inno-
. - rson harmed by the results of the blasting, the company
should be held
table, with the damages to be absorbed as part of the costs of
doing
Strict liability
Liability without having
to prove fault.
Ultrahazardous
activities
Those activities that
have an inherent risk
of injury and therefore
may result in strict
liability.
Products liability
The theory holding
manufacturers and
sellers liable for
defective products when
the defects make the
products unreasonably

dangerous.
The Consumer Product Safety Commission has a website where
you can fino
information on recalls and unsafe products. Start at
www.cpsc.gov.
business. Of course, any company engaging in such dangerous
activities wo·· -
be wise to purchase liability insurance.
In addition to such dangerous business activities as using or
storing exp
sives, courts have frequently found the owners of wild animals
strictly liable :
injuries the animals cause. Applying the factors listed in the
Restatement you c--
see why keeping a lion, for example, in a backyard cage would
lead to a fin ·-
of strict liability.
2. Products liability
When a product proves to be defective, an injured party can sue
under any o;:;._
of three theories: negligence, breach of warranty, or strict
liability. Which theo
to use depends on the facts of the case and how the plaintiff's
state has chosen :
categorize products liability cases. Breach of warranty will be
covered in the n
chapter on contract remedies. Here we will discuss the tort
theories of negligee.
and strict liability.
There are three basic theories a plaintiff can use when bringing

a prod<L~
liability claim based on negligence: (1) a defect in the product
caused by f~ :t.-
to use reasonable care in the manufacturing process; (2) a defect
in the pro
caused by negligent design; and (3) negligent failure to warn. A
classic case
bringing a negligence case based on proof of a manufacturing
defect is M..;:-
Pherson v. Buick Motor Co.46 The plaintiff's car had wooden
wheel spokes,~-
one of the wheels was made of defective wood, causing the car
to collapse, ini!::-
ing the plaintiff. As noted above, the second basis for bringing
a negligence cl
would be proof of a design defect. For example, a hockey
helmet with cuto
around the ears that allows penetration of a hockey puck is
arguably defecti>:='
designed. Finally, a failure to warn of a danger known to the
manufacturer l
probably unknown to the user would form the basis for a
negligence suit. In-
following case, the court had to determine whether the
manufacturer of an
minum baseball bat was liable for the death of an 18-year-old
pitcher.
46 111 N.E. 1050 (N.Y. 1916).
·ce WHEAT delivered the opinion of the Court.
BACKGROUND
While pitching in an American Legion base-

-all game, eighteen-year-old Brandon was struck
- the head by a batted ball that was hit using
-::&B's model CB-13 aluminum bat. Tragically,
-andon died from his injuries.
Brandon's parents ... sued H&B in strict
=-=-oducts liability ... asserting design defect and
-:: · ure to warn claims. Patches claimed H&B's
-odel CB-13 aluminum bat was in a defective
_ ndition because of the enhanced risks associ-
=:ed with its use: It increased the velocity speed of
- atted ball when it left the bat, thus decreasing
-elders' reaction times,2 and resulted in a greater
-:.unber of high energy batted balls in the infield.
... The matter was tried ... and Patches'
.:=sign defect and failure to warn claims were
~bmitted to the jury. The jury concluded the
-odel CB-13 aluminum bat was not designed
-"fectively, but determined the bat was in a defec-
e condition due to H&B's failure to warn of
--e enhanced risks associated with its use and
·arded Patches an $850,000 verdict on their
·.illure to warn claim.
DISCUSSION
. H&B asserts that only the individual
.:atting (actual user) and the individual who pur-
- sed the bat (actual consumer) can assert a
·::" ure to warn claim. H&B's narrow interpreta-

n of the terms user and consumer is contrary
- rhe definition of the terms as contained in the
7 estatement (Second) of Torts § 402A and is
- -ongruent with this Court's products liability
~--is prudence.
C. Strict Liability 261 •
[T]his Court [has] adopted the theory of
strict products liability contained in Restatement
(Second) ofTorts § 402A, which provides that "[o]
ne who sells any product in a defective condition
unreasonably dangerous to the user or consumer
or to his property is subject to liability for physical
harm thereby caused to the ultimate user or con-
sumer . . .. " Although the drafters did not deter-
mine whether § 402A applied to bystanders, they
broadly defined the terms consumer and user ....
They reasoned that a consumer does not necessar-
ily have to purchase the product. "He may be a
member of the family of the final purchaser, or his
employee, or a guest at his table, or a mere donee
from the purchaser." They also stated that the term
user "includes those who are passively enjoying
the benefit of the product, as in the case of passen-
gers in automobiles or airplanes, as well as those
who are utilizing it for the purpose of doing work
upon it, as in the case of an employee .... "
The realities of the game of baseball support
the District Court's decision to submit Patches'
failure to warn claim to the jury. The bat is an
indispensable part of the game. The risk of harm
accompanying the bat's use extends beyond the
player who holds the bat in his or her hands.

A warning of the bat's risks to only the batter
standing at the plate inadequately communicates
the potential risk of harm posed by the bat's
increased exit speed. In this context, all of the
players, including Brandon, were users or con-
sumers placed at risk by the increased exit speed
caused by H&B's bat. H&B is subject to liability
to all players in the game, including Brandon, for
the physical harm caused by its bat's increased
exit speed. We conclude the District Court did not
studies note that the average time needed for a pitcher to react
to a batted ball is .4 seconds. Analysis of the sound recording
~::he game confirmed that the reaction time available to
Brandon to turn away or defend himself was only .376 of a
second.
err in denying H&B summary judgment and sub-
mitting Patches' failure to warn claim to the jury.
Assumption of the risk was not applicable here
because there is no evidence that Brandon actually
knew he would be seriously injured or killed when
pitching to a batter using one of H&B's model
CB-13 aluminum bats. In other words, H&B failed
to show that Brandon was aware of the enhanced
risks associated with the model CB-13 aluminum
bat, and, knowing that, he voluntarily proceeded to
pitch to a batter using that bat.
We affirm.
JusTICE RICE, concurring.

While I concur that Patches have stated a
legally valid claim, I remain troubled .... Patches
did not articulate specifically what a warning
should have contained .... Neither did Patches
articulate specifically how a warning would have
changed the result here, in other words, how the
failure to warn caused this accident ....
The closing argument Patches made to the
jury seemed to reflect the stretch which they
asked the jury to make:
They don't have warnings on these bats. There's
nothing said on these bats about what these bats
can do. And that your child, whether he's 15, 16,
17, 18, 19-if your child is playing and he's a
pitcher, he could be killed, as what happened
here.
Now I ask you this - I ask you-all this: If you had
a child 17 or 18 years old and he wanted to be a
pitcher and the bat that the kid was bringing up to
the plate warned - warned- that this bat could
kill-Mr. [a]nd Mrs. Patch didn't have the benefit
of any warning.
Patches' apparent theory . . . was that H&B
should have advertised that its bat "could kill."
[T]he inference which Patches asked the jury to
draw ... was that, following the publishing of a
warning "that this bat could kill," they as parents
would have ... prohibited Brandon from playing
baseball that day.
. .. There is no doubt that the jury in this

case was given a difficult task. . . . I defer to
the jury's judgment and likewise affirm their
verdict.
1. The court noted that after Brandon's death the team quit using
alumin
bats, switching to wood bats. Do you think the jury should have
been given
information?
2. Do you agree that strict product liability should be extended -
bystanders like Brandon?
3. -What do you think of the approach the plaintiff's attorney
took in
closing argument to the jury?
There are times when a plaintiff cannot point to any one act of
neglige
Nonetheless, the product was defective, and that defect caused
an injury. In th
cases the plaintiff might rely either on a warranty theory-the
product fai.=
to meet the buyer's expectations for a safe product-or on a tort
strict liab·
theory. In the following case, the court discusses the history of
the developme-
of products liability and why it thinks a tort as opposed to a
contracts approa
C. Strict liability 263 .

meets the needs of consumers. The plaintiff was a young woman
who had
- dy given birth. In order to stop vaginal bleeding, her doctor
prescribed a
_=> manufactured by Miles Lab. While the drug was successful
in stopping the
erding, unfortunately it was contaminated, and the plaintiff
became infected
the HTLV-III virus. She developed Acquired Immuno-
Deficiency Syndrome
~ ed Complex, a predecessor of AIDS.
Defective products cause accidents that
-esult in both economic losses and injuries either
:o persons or property. Allowing victims to
-x over for such losses was long a controversial
- ue. Indeed, the common law has followed a
-onfusing and tortuous path in perceiving and
:-emedying the situation.
Originally caveat emptor prevailed. Both
:English and early American courts found no
bility on a seller's part-either in contract
r in tort-toward anyone, either purchaser or
~ystander, for injuries caused by products ....
It is not surprising the rule faded away. As
: ieties shifted from agriculture to industry,
:::tore manufactured products entered the stream
; commerce.
Arising as it did in the context of commerce,

~ly products liability law adopted the concepts
:;_ad parameters of contract law.
Historically, contracts law never provided
.:. credible basis for recovery for more than a few
i. the total numbers of persons injured in acci-
::ents .... First, [a] manufacturer could contract
ut of liability by making disclaimers an express
:errn of the contract. Second, the concept of privity
- ·erely restricted the class of persons who could
-xover. [Authors' Note: A requirement of privity
.eans that the person harmed by the product must
:we purchased it directly from the manufacturer.]
J>nsumers, for example, seldom buy directly
=-om manufacturers. Instead people usually buy
products from intervening distributers or retailers,
and courts seized upon this intervention as a rea-
son for cutting off manufacturers' liability.
Where contract law slammed the door, tort
law served to pry it open a crack ....
This law evolved dramatically when Judge
Cardozo articulated negligence in products liabil-
ity as we know it today. In MacPherson v. Buick
Motor Co., 217N.Y. 382,111 N.£.1050 (1916),
he [stated:]
If the nature of a thing is such that it is reasonably
certain to place life and limb in peril when negli-
gently made, it is then a thing of danger. Its nature
gives warning of the consequences to be expected.

If to the elements of danger there is added knowl-
edge that the thing will be used by persons other
than the purchaser, and used without new tests,
then irrespective of contract, the manufacturer of
this thing of danger is under a duty to make it care-
fully .... We have put aside the notion that the duty
to safeguard life and limb, when the consequences
of negligence may be foreseen, grew out of contract
and nothing else. We have put the source of the
obligation where it ought to be. We have put its
source in the law.
Id. at 389-90, 111 N.E. at 1053. By 1966 the rule
from MacPherson v. Buick Motor Co. had been
universally recognized as the law in the United
States ....
Once liability in negligence became estab-
lished, the concept of strict products liability gained
favor as an alternative theory of recovery for inju-
ries from defective products. It is commonly stated
that there are three reasons for holding manu-
facturers and dealers strictly liable for personal
or property injury caused by defective products.
First, innocent victims should not be forced to
bear the costs of accidents, which still occurs far
too often, for even a negligence action may impose
an evidentiary burden impossible to meet. Second,
that strict liability promotes accident prevention,
for the manufacturers are in a better position to
ascertain and control the risks associated with

their products. Third, that manufacturers are in a
better position than victims to bear the costs, for
they can distribute the losses across the many who
purchase the product, whereas an individual vic-
tim, unless he or she is exceptionally well-to-do or
heavily insured, will be driven into bankruptcy or
into social welfare programs.
[I]n Greenman v. Yuba Power Products,
Inc., 59 Cal. 2d S7, 27 Cal. Rptr. 697, 377 P.2d
897 (1963), [the court] inaugurated strict prod-
ucts liability in tort as an alternative theory of
recovery . .. .
The Greenman court predicated liability on
the idea a manufacturer "is strictly liable in tort
when an article he places on the market, knowing
that it is to be used without inspection for defects,
proves to have a defect that causes injury to a
human being." Id., 377 P.2d at 900 . ... The court
reasoned that "liability is not assumed by agree-
ment but imposed by law." Id. at 901.
Shortly thereafter, the American Law
Institute in 1965 in the Restatement (Second) of
Torts included section 402A, which provides:
(1) One who sells any product in a defective con-
dition unreasonably dangerous to the user or con-
sumer or to his property is subject to liability for
physical harm thereby caused to the ultimate user
or consumer, or to his property, if (a) The seller is
engaged in the business of selling such a product,
and (b) It is expected to and does reach the user
or consumer without substantial change in the

condition in which it is sold. (2) The rule stated in
subsection (1) applies although (a) The seller has
exercised all possible care in the preparation and
sale of his product, and (b) The user or consumer
has not bought the product from or entered into
any contractual relation with the seller.
... In 1976 the Maryland court explicitly
adopted Section 402A's strict products liability in
tort in Phipps v. General Motors Corp., 278 Md.
337,363 A.2d 955 (1976) .
Whatever the theory of recovery, whether
negligence or strict liability, it is now clear that
the test in products liability is the same. A plaintiff
must show 1) the existence of a defect; 2) the attri-
bution of the defect to the seller; and 3) a causal
relation between the defect and the injury.
Analysis
Defendant's motion for summary judgment
leads the Court into ambiguous territory. Many
of the issues raised are new. The Court is in a posi-
tion common to Erie cases, namely being a fed-
eral court required to determine state law when
the state courts have not directly addressed the
issues. In such a case the federal court is obliged
to view the matter as a state court would find the
law, not necessarily as it would find the law to
be .... [Authors' Note: The court then went on to
discuss whether policy considerations warranted
exempting blood and blood products from strict
liability in tort and decided they did not.]
Entrepreneurs by their nature are risk tak-

ing individuals. To the extent they need an incen-
tive to engage in socially beneficial activities, the
law already provides it in the form of a corporate
shield on personal liability. To do as defendant
argues, and exempt blood from strict liability
would be to subsidize the product by forcing
either victims or government through its social
welfare programs to bear accident costs ....
Accordingly, the Court will deny defen-
dant's motion for summary judgment on plain-
tiffs' claim for strict products liability.
C. Strict Liability 265 .
SE DISCUSSION QUESTIONS
1. The court discusses a doctrine known as privity of contract.
Why did
court see it as limiting the ability of plaintiffs to sue for
defective products?
2 . Why did the court think a tort-based approach to products
liability was
·erable to one based on contract and warranty law?
3. The court stated: "The argument is often made that strict
products
ility has the potential to bankrupt manufacturers. Such an
argument misses
~ salutory economic role strict products liability plays.
Understood properly,
.:an be seen that strict liability promotes a rational market

place." How so?
As the court in Doe v. Miles Laboratories, Inc;, pointed out, a
very influ-
development in the history of products liability law was the
1965 passage
-Section 402A of the Restatement of the Law of Torts, Second.
Under Section
- ~ a manufacturer or seller is liable if it sells a defective
product that harms
.:onsumer and that defect made the product unreasonably
dangerous. Unlike
--er provisions of the Restatement, Section 402A was not really
a restatement
· existing law. Rather it was the American Law Institute's vision
of what the
should be. When it was passed, it had little support. Over the
years that has
ged, and today most states have adopted Section 402A. Figure
7-4 summa-
the history of products liability law.
:Jefenses to Strict Liability Torts
;.;aintiff's contributory negligence is usually not considered a
defense to strict
ility; however, assumption of the risk and product misuse may
be. For a man-
.:rurer to assert the affirmative defense of product misuse, the
manufacturer
- prove that the product was not being used for its intended
purpose or was
-g used in a dangerous manner that could not reasonably have

been foreseen
- e manufacturer. However, even if a plaintiff misuses a
product, if that use
: reseeable, the manufacturer may be liable for a design defect.
For example,
::me a young child opened a stove door in order to step on it in
an attempt to
- a shelf located above the stove. Although clearly a stove is not
meant to be
..: as a stepping stool, a court might hold that this misuse was
foreseeable and
have been avoided by a different design.
In Figure 7-5 on page 266 we have summarized the elements
and defenses
'ct liability. This figure covers strict liability both as it applies
to ultrahaz-
- us activities and to product liability.
-eat Emptor
iab ility
ContracUBreach of Warranty
Liability unless disclaimed or
lack of privity of contract
7-4 History of Products Liability Law
Negligence
Liability if can prove
unreasonable behavior

Product misuse
When the product was
not being used for its
intended purpose or
was being used in a
dangerous manner; it is
a defense to a products
liability claim so long
as the misuse was not
foreseeable.
Strict Liability
Liability if sold defective
product that was
unreasonably dangerous
Prima Facie Case Defenses
Ultrahazardous Activities (All six factors need not be present.)
1. Existence of a high degree of risk of some harm 1.
Assumption of the ri
to the person, land, or chattels of others;
2. likelihood that the harm that results from it will
be great;
3. inability to eliminate the risk by the exercise of
reasonable care;
4. extent to which the activity is not a matter of

common usage;
5. inappropriateness of the activity to the place
where it is carried on; and
6. extent to which its value to the community is
outweighed by its dangerous attributes.
Product liability (All of the following must be present.)
1. The product was in a defective condition at the
time that it left the possession or control of the
seller,
2. that it was unreasonably dangerous to the user
or consumer,
3. that the defect was a cause of the injuries, and
4. that the product was expected to and did reach
the consumer without substantial change in its
condition.
Figure 7-5 Summary of Strict Liability
D. NEWTORTS
1 . Assumption of the ri"'
2. Unforseeable produ
misuse
3. Contributory negl i-
gence (in some states

As you have seen, tort law is aspirational, striving to protect
our interests -
being free from unlawfu1 intrusion into our privacy, reputation,
and boC.:.
integrity. As such, tort law is not a rigid doctrine but rather is
ever changing
meet society's needs. In this section we will look at three
developing areas of rc-:-
law. It is too soon to know whether any of these areas will
become establishe-
but they all illustrate the evolving nature of the law.
1. Wrongful Life or Wrongful Birth
Wrongful life involves a child suing on the basis that but for
someone's n _
gence the child never would have been born. Wrongful birth, on
the other haz.
involves parents suing over the birth of a child. In either case,
these types
lawsuits raise the very fundamental question of whether a
defendant shoul~ _
liable for negligently causing the birth of a child. The courts
have arrivoc
D. NewTorts
nsistent answers to this question. These situations typically
arise when a
sician negligently failed to diagnose a pregnancy or negligently
performed
erilization procedure. One difficulty for the courts has been the
problem of

· g to weigh the costs of raising a child against the value of the
life and the joy
:>arenthood. Another problem relates to the difficulty in
assessing damages.
Courts frequently have simply allowed recovery for the costs of
the failed
·cal procedure. On the other hand, when the child is born
deformed, the
~ are more willing to allow recovery for the costs associated
with raising the
d minus the costs associated with raising a healthy child.
Battered Spouse Syndrome
ew tort, recognized in only a few states, is the tort of battered
spouse syn-
- me. Battered spouse syndrome is the result of a continuing
pattern of abuse
- violence. Typically, the cycle consists of three stages. To be
seen as a battered
- use, typically the battering cycle must occur at least twice.
• The first stage involves minor physical or verbal abuse that
escalates
while the victim tries to mollify his or her abuser by remaining
passive.
• Stage two is when the actual battering occurs.
• During the third stage, the abuser asks for forgiveness and
promises
never to abuse again. This period of relative calm then leads
into the
cycle beginning again.

- :tims often remain trapped in this cycle because they are
ashamed or because
ey have the very realistic fear that reporting the behavior will
only cause it to
- ate.
When an abuse victim finally gains control of the situation and
wishes to
~the abuser for the injuries suffered, bringing a claim under
traditional battery
emotional distress theories may result in a dismissal under a
statute of limita-
as defense. This is because it may have taken the victim longer
than the statute
-limitations allows, typically two years, to leave the
relationship and develop
~ self-confidence needed to bring a claim. By instead bringing
the claim under
-~ theory of battered spouse syndrome, the victim may avoid the
usual statute
·.imitations problems by arguing that the tort of battered spouse
syndrome is
.::ontinuing tort," thus tolling the statute of imitations for
assault, battery, and
otional distress.
Drug Dealer liability Act
·ume a baby is born already addicted to cocaine because of his
mother's sub-
ce abuse while she was pregnant. Whom can the baby sue?
Recalling the case

· Woods v. Lancet, one possibility is that the baby could sue the
person who
:-plied the drug or even the mother for negligence.
In addition, in a number of states there is now another possible
defendant:
one who sold or gave away cocaine to anyone (not necessarily
the mother) in
~ same county and during the same time period that the mother
used cocaine.
267 •
Liability is based on a new statute, the Drug Dealer Liability
Act, which has beer:
adopted in at least 15 states. Under that statute anyone who
distributes an illeg
drug can be sued by anyone harmed by that type of drug. The
only limitations are
that the distribution must have been in the same geographic area
and during the
same time period as the person who took the drugs. Obviously,
such a statute h- -
far-reaching consequences. To give an example, at a backyard
barbecue a business-
man shares some marijuana with a friend. Two weeks later a
teenager buys som
marijuana on the street from an unknown dealer. The teenager is
then injured in :u:
automobile accident when he loses control due to his marijuana
"high." That tee.G-

ager could sue the businessman-someone he has never met-for
his injuries. The
difficulty, of course, would lie in locating potential defendants,
such as the busi-
nessman, who have sufficient "deep pockets" to make such a
lawsuit worthwhile.
Some have argued that the Drug Dealer Liability Act violates
substanti,·
due process in that it "shocks the conscience."47 Others think
that such a sui:
might violate double-jeopardy protections if the suit is brought
by the govern-
ment against someone who has already been convicted of drug
dealing.
DISCUSSION QUESTIONS
11. In most states, people can sue for loss of companionship of
a spouse
or a child who dies as a result of an intentional tort. Most
states, however, trea-
the loss of a pet as the loss of personal property and will only
award the val•':
of the pet and not the pain and suffering caused by the death of
the animal.
Advocates for a change in the law argue that dogs, cats, and
other family pe::s
should not be lumped with inanimate personal property, such as
purses, furniture.
or articles of clothing. Do you think more states should
recognize a new tort
fully compensate owners for the loss of their pets?
12. Should tort law be an ever-expanding concept, or should
there be so

limits put on liability? Why? If the latter, what should those
limits be?
13. Some argue that there is a litigation explosion; that instead
of takin=
responsibility for their own actions, people are resorting in
increasing numb
to the legal system for relief. Do you agree? Why? If you do
agree, what sholli.:.
be done about it?
E. REMEDIES
As you have seen from reading the cases in this chapter, the
most common for::.
of remedy that a plaintiff seeks in a tort action is the awarding
of some form
damages. In some cases these awards can be quite large, even in
the billions - -
dollars.49
47Dam, Injured Parties Can Sue Any Drug Dealer, 95
L.W.U.S.A. 869 (Sept. 11, 1995).
48Tresa Baldas, Bid to Create New Tort Over Pets Fails, For
Now, Nat' I L.J., May 29, 2006, at 6.
49According to an annual survey conducted by a major verdict
search firm, in 2010 there was a 2.5 bi.L
dollar verdict in an intellectual property case and an over 1.5
billion dollar verdict in a products liab" -
case. "Top Verdict Categories," Nat'! L.J. Mar. 7, 2011 , at 11.
E. Remedies
Of course, these highly publicized, initial verdicts are not

representative
~t the average litigant ends up actually receiving. Initial
verdicts are often
~...._...~ on appeal or the plaintiffs settle for a lesser award to
avoid the delay
- :mcertainty involved in the appellate process.
From Chapter 3 you will recall that there are basically three
types of dam-
-= awards: compensatory, punitive, and nominal. In addition to
or instead of
ges, the court might issue an injunction. An injunction is an
order to the
_-dant ordering the defendant to do a specific act or to cease
doing a spe-
- act. Compensatory damages (sometimes referred to as actual
damages) are
-ded to compensate the plaintiff for the harm done to him or
her: In a tort
involving harm to a person, that might mean the cost of medical
bills, lost
~ from work, and pain and suffering.
Compensatory damages can be further divided into general
damages and
.:ial damages. Special damages represent the economic loss that
someone suf-
due to a tort injury. They include the cost of repairing or
replacing the
- ged property, paying any medical bills, and replacing
plaintiff's income
- while unable to work. General damages, which are sometimes

labeled non-
-omic damages, include such intangibles as pain and suffering,
emotional
-ess, disfigurement, loss of reputation, and loss of enjoyment of
life.
Unlike compensatory damages, which are designed to pay
plaintiffs for
done to them, punitive damages serve the dual functions of
punishing
.:: deterring tortfeasors. Because their purpose is to punish and
deter, typi-
punitive damages are awarded only for intentional torts and
only when the
rr determines that the defendant deserves an additional
punishment beyond
. ompensating the plaintiff for the harm done to him or her.
While a popu-
- ?t!rception is that juries often award punitive damages, "in
2005, the most
-- t year studied by the U.S. Department of Justice (DOJ),
punitive damages
e sought in only . . . 10 percent of tort trials ... and were
awarded in only 3
~ent of tort cases." 5°
If the decision is made to award punitive damages, an issue
arises as to the
~ropriate ratio between those damages and the compensatory
damages. For
- ple, if a plaintiff were awarded $10,000 in compensatory
damages, would

-- uate punishment be meted out with punitive damages that
were twice, ten
-es, or even a hundred times the compensatory amount? The
courts have never
an exact formula. However, the United States Supreme Court
has held that
_: r the Constitution's due process protections, a defendant must
"receive fair
· e not only of the conduct that will subject him to punishment,
but also
· -· e severity of the penalty that a state may impose."51 In the
following case,
~ -ourt considers the constitutionality of an award of $18
million in punitive
ges in a case where the jury had awarded $2.64 million in
compensatory
ages. Robin Aleo, a 29-year-old wife and mother, died when she
tried to
~ an inflatable swimming pool slide. As she went down the slide
head first, it
psed and deflated causing her head to hit the concrete pool
ledge, breaking
=r for Justice & Democracy, "What You Need to Know about
Punitive Damages," September 2011,
·ble at http://centerjd.org.
~ v. Gore, 517 U.S. 559, 574 (1996).
269 •

her neck. She died the next day. Prior to offering it for sale,
Toys R Us had no:
ordered the proper compliance testing to ensure that the slide
was safe for U5t'
by adults. Based on this evidence, the jury found that Toys R Us
had been gros
negligent.
Compensatory damages and punitive dam-
ages, although generally awarded at the same
time and by the same fact finder, serve different
purposes. Compensatory damages "are intended
to redress the concrete loss that the plaintiff has
suffered by reason of the defendant's wrongful
conduct. By contrast, punitive damages serve a
broader function; they are aimed at deterrence
and retribution."
... The Massachusetts wrongful death stat-
ute permits an award of punitive damages where
the decedent's death was caused by the "mali-
cious, willful, wanton or reckless conduct of
the defendant or by the gross negligence of the
defendant." 19 We have stated that the purposes
of punitive damages include "condemnation and
deterrence," and that a "proper punitive damage
award" is one that is "sufficient ... to send a clear
message to the [defendant] of condemnation for
its reprehensible behavior .... "
The due process clause of the Fourteenth
Amendment to the United States Constitution,

however, prohibits the imposition of a "'grossly
excessive' punishment" on a tortfeasor. BMW of
N. Am., Inc. v. Gore, 517 U.S. 559,562 (1996).
In BMW, the United States Supreme Court
set forth three factors to consider in determin-
ing whether a punitive damages award is exces-
sive: (1) "the degree of reprehensibility of the
defendant's conduct," (2) the ratio of the puni-
tive award to the "actual harm inflicted," and
(3) a comparison of"the punitive damages award
and the civil or criminal penalties that could be
imposed for comparable misconduct."
i. Degree of reprehensibility.
The United States Supreme Court has
"instructed courts to determine the reprehen-
sibility of a defendant by considering whether:
the harm caused was physical as opposed to eco-
nomic [and whether] the tortious conduct evinced
an indifference to or a reckless disregard of the
health or safety of others ....
In this case, the harm caused was physical
and was so severe as to result in Robin's death .. ..
Toys R Us neglected to ensure that the slide con-
formed with applicable safety regulations before i:
sold the slide to customers, even when it knew or
should have known ... that head-first use coul -
result in serious if not catastrophic injury or dea
Such conduct evinces an indifference to the saf~
of persons using products sold by Toys R Us ... .
In assessing these factors, we conclude tha:

the circumstances of this case exhibit a substanti~
degree of reprehensibility. Although only gross!
negligent, rather than malicious or willful, Toys
Us's conduct nonetheless caused grievous physi-
cal harm, evinced an indifference to the safety o:
others, and involved repeated actions.
ii. Ratio of punitive award to actual harm
inflicted.
Notwithstanding its reliance on this fac-
tor, the United States Supreme Court has:
declined repeatedly to impose a constitutional:
19As one commentator has noted, statutes of this kind are
grounded in a "very simple" legal philosophy: "all human life is
preci
and ... there is nothing wrong with making it very expensive to
kill people."
-sible ratio that punitive damages awards
ot exceed .... However, the Court has pro-
- orne guidance, stating that "few awards
=eding a single-digit ratio between punitive
- -ompensatory damages, to a significant
_ ee, will satisfy due process. . . . Single-digit
_ liers are more likely to comport with due
ess, while still achieving the State's goals of
---ence and retribution, than awards with
-in range of 500 to 1 or ... 145 to 1." State

Automobile Ins. Co. v. Campbell, 538 U.S.
26 (2003).
Here, the jury awarded $18 million in puni-
- aamages and $2,640,000 in compensatory
- es, a ratio of slightly less than seven to one.
-:.rse the award is within the single digit range,
e harm is primarily noneconomic, the award
ot, on its face, appear grossly excessive in
- of the accompanying compensatory damages.
m. Comparison of punitive award to civil
es.
Toys R Us potentially could have been sub-
-o S 1,250,000 in civil fines for the importation
ISCUSSION QUESTIONS
E. Remedies
of the slide. In that event, the ratio of punitive
damages to possible civil penalties would be $18
million to $1,250,000, or approximately fourteen
to one.
This ratio may appear high. However, the
United States Supreme Court has indicated that
strict equivalence between punitive awards and
possible civil penalties is not necessary in order
for an award to meet constitutional requirements.
In sum, Toys R Us's conduct, as found by

the jury, evinced a substantial degree of reprehen-
sibility. The ratio of punitive damages awarded
to actual harm is within the single-digit range
that generally accords with due process, and a
comparison of punitive damages to possible civil
penalties suggests that the amount of the punitive
damage award is not so excessive as to exceed
constitutional bounds. The jury's award of puni-
tive damages in this case, while perhaps higher
than many such awards, cannot "fairly be cat-
egorized as 'grossly excessive' " in relation to the
Commonwealth's legitimate interests in condem-
nation and deterrence.
Judgment affirmed.
What does this court say is the function of punitive damages?
_ What three guideposts has the U.S. Supreme Court developed
to analyze
--: opriateness of the size of a punitive award?
How did this court apply each of those guideposts to the facts of
this
Qo you agree with the court's reasoning?
: ally, nominal damages are awarded when a right has been
violated but
~ tiff cannot prove any monetary harm. For example, a
trespasser may
:a ed no harm to the land, but the landowner would still be
entitled to a
__ -~:::~ award.
-- recent years the topic of tort reform has often been in the
news.

~ly in the area of medical malpractice, higher insurance costs
and a per-
crease in the amount and number of damage awards have caused
con-
-- - a consequence, some states have passed legislation to limit
the amount
- -ges that can be awarded. In some instances that limit applies
to the total
ut in others only to punitive damages or to non economic
damages, that
is, those damages that deal with harm, such as pain and
suffering, as opposec. -
economic damages, such as lost wages and medical costs.
In some states these so-called caps have been challenged and
found to
unconstitutional. However, in other states these caps have
withstood con
tiona! challenge or the state has amended its constitution to
provide for the lq:.; -
imacy of such caps. Opponents of caps suggest that they cause
the most han::;:-
those most injured (and hence logically those with the most
damages that wo
be above the cap) and that a better approach is through
insurance reform.
In a recent case from Florida, the state's supreme court found a
statur

damages cap as applied to medical malpractice cases
unconstitutional. In
opinion, the court lambasted the legislature for creating a
fictitious medical
practice crisis to justify the creation of the cap. The case had
been brought by-
family of a 20-year-old woman who died following a caesarian
section beca
the hospital staff left her unattended for over an hour, during
which time -
bled to death. The trial court found noneconomic damages of $2
million, 2
reduced the amount to $1 million based on Florida's statutory
cap on wron
death noneconomic damages for medical malpractice claims.
Having carefully considered the arguments
of both parties and the amici, we conclude [t]he
statutory cap on wrongful death noneconomic
damages fails because it imposes unfair and illog-
ical burdens on injured parties [and] does not
bear a rational relationship to the stated purpose
that the cap is purported to address, the alleged
medical malpractice insurance crisis in Florida.
[The statutory cap] has the effect of saving a
modest amount for many by imposing devastating
costs on a few-those who are most grievously
injured, those who sustain the greatest damage
and loss. [W]e hold that to reduce damages in
this fashion is not only arbitrary, but irrational,
and we conclude that it "offends the fundamental
notion of equal justice under the law."
The Alleged Medical Malpractice Crisis

The Florida Legislature attempted to justify
the cap on noneconomic damages by claiming that
"Florida is in the midst of a medical malpractice
insurance crisis of unprecedented magnitude.-
The Legislature asserted that the increase in meci-
ical malpractice liability insurance premiums has
resulted in physicians leaving Florida, retiring
early from the practice of medicine, or refusing
to perform high-risk procedures, thereby limitin~
the availability of health care.
Our consideration of the factors and cir-
cumstances involved demonstrates that the con-
clusions reached by the Florida Legislature as t '
the existence of a medical malpractice crisis are
not fully supported by available data. Instead, the
alleged interest of health care being unavailable
is completely undermined by authoritative go•-
ernment reports. Those government reports haw
indicated that the numbers of physicians in borl:.
metropolitan and non-metropolitan areas haYe
increased . .. . Thus, during this purported crisis.
the numbers of physicians in Florida were actu-
ally increasing, not decreasing.
.rinally, testimony before the Senate Judiciary
.--~~·ttee and debate within the Florida Senate
~questions concerning the magnitude of any
-; rred health care crisis. With regard to the
~ the deputy director of the Florida Office
--urance Regulation testified he had found no

e to suggest that there had been a large
:ase in the number of frivolous lawsuits filed
- rida, nor was there any evidence of exces-
- :.rry verdicts in the prior three years.
Impact of Damage Caps on the Alleged Crisis
Reports have failed to establish a direct
:: tion between damages caps and reduced
;~actice premiums. Weiss Ratings, which
::.ates the performance of the malpractice
~ance industry, has detailed two particularly
findings. First, based upon data acquired
~ 1991 until 2002, the median medical mal-
·ce premiums paid by physicians in three
--risk specialties- internal medicine, general
5 ery, and obstetrics/gynecology-rose by 48.2
.:ent in states that have damages caps, but in
without caps, the median annual premium
ISCUSSION QUESTIONS
E. Remedies 273 •
increased at a slower rate- by 35.9 percent .
Second, the study noted that among states with
caps on damages, only 10.5 percent (two of nine-
teen states with caps) experienced static or declin-
ing medical malpractice premium rates following
the imposition of caps. In contrast, among states

without damages caps, 18.7 percent (six of thirty-
two states without caps) experienced static or
declining medical malpractice premiums.
While th~ cap on noneconomic damages
limits the amount of money that insurance com-
panies must pay injured victims of medical mal-
practice, [the cap] does not require insurance
companies to use the acquired savings to lower
malpractice insurance premiums for physicians.
We conclude that the record and available
data fail to establish a legitimate relationship
between the cap on wrongful death noneconomic
damages and the lowering of medical malprac-
tice insurance premiums. Accordingly, we hold
that [statutory cap] fails the rational basis test
and violates the Equal Protection Clause of the
Florida Constitution.
What do you think the court meant when it said the statutory
cap "has
- cr of saving a modest amount for many by imposing
devastating costs on
- those who are most grievously injured"?
_ Do you think it is appropriate to try to limit the amount of
economic,
omic, or punitive damages through a cap?
SSION QUESTIONS
- . To determine the amount of punitive damages, do you think
it is fairer
- dants to apply "guideposts" such as the Supreme Court has
been using

pie ratio, such as mandating that in non-personal injury cases
punitive
5 e awards cannot exceed nine times the compensatory award?
Would such
- tisfy society's need to deter future bad conduct?
-. Typically, punitive damages are awarded to the plaintiff
because it was
~ - tiff who brought the lawsuit. However, punitive damages are
designed
- h the defendant rather than compensate the victim. Some have
argued,
Ill
therefore, that punitive damages should be paid to the state
(society as a whole
rather than to the individual plaintiff. Indeed, a few states have
passed laws
that split punitive damage awards between the plaintiff and the
state. Which
arrangement do you think would best meet the goal of punitive
damages to deter
and punish?
CHAPTER SUMMARY
A tort is a private wrong that causes harm to a person or
property. Torts ~
generally classified as involving intentional acts, negligence, or

strict liabili .
Intentional torts occur whenever someone intends an action that
results in harlh
Examples include assault and battery, false imprisonment,
defamation, invasio:-
of privacy, intentional infliction of emotional distress, and
trespass. Negligen
involves a breach of duty that causes harm. Cause includes both
actual cau...~
and proximate cause. Strict liability includes both ultra
hazardous activities ~:.
products liability, where an unreasonably dangerous defective
product is so_
Finally, in a limited number of situations, such as those
involving contact spo
the courts will apply a reckless standard. Recklessness involves
a conscious dec-
sion to proceed despite a substantial and unjustifiable risk that
harm will res·-'-
Tort law is constantly evolving. The courts are still developing
new torts :
cover changing societal views as to what should be protected.
Examples inclu-~
the torts of wrongful life or birth and battered woman's
syndrome.
Finally, in bringing a tort action a plaintiff is generally seeking
either ::-
injunction or damages. Damages can take the form of a
compensatory, puni ·
or nominal award.
Ill,, . ~ULA::UU..:I uu ~'U.U..I.I~ L..::ZAJ =p '"'~'Y4""J'"''-
·.··· ':··· -~r;
1. Martha Smith went to a K-Mart store at about 7:30pm on

Septem
to purchase some diapers and several cans of motor oil. She
took her small C.:
along to enable her to purchase the correct size diapers,
carrying the child G:
infant seat which she had purchased at K-Mart two or three
weeks previous-
large K-Mart price tag was still attached to the infant seat.
Martha purchased the diapers and oil, and some children's
clothes. She
in a hurry to leave because it was then 8:00 pm, her child's
feeding time.
she rushed through the checkout lane. She paid for the diapers,
oil, and clot;.
Just after leaving the store she heard someone ask her to stop.
She turned ar<
and saw a K-Mart security guard, who asked, "Would you please
come back
the store?" Martha replied, "What for?" The security guard
pulled out a
badge, showed it to her, and said that if she would just come
back into the ~
he would like to talk to her about it.
E. Remedies
When Martha hesitated, the security guard grabbed her by the
arm and led
- ack into the store, stopping just inside the doors. The guard
then told Martha
--one of the K-Mart employees had informed him that she saw
Martha steal

.::ar seat. Martha denied that she had stolen the seat and
explained that she
• urchased the seat previously. She demanded to see the person
who accused
; stealing the seat. The security guard said that it would take a
while to find
employee. Martha asked if they could wait in a more private
place, but the
-d said that they could not.
_fter approximately 20 minutes, the employee was found. The
employee
that she saw Martha steal the infant seat by taking it off a table
and put-
= .:1er baby in it. Martha pointed out to the security guard that
the seat had cat
, food crumbs, and milk stains on it. The guard then said, "I'm
really sorry;
e's been a terrible mistake. You can go." Martha looked at the
clock as she
The time was 8:30 pm.
The following statute, ch. 203, § 99, applies to the situation.
- :nerchant or merchant's adult employee who has probable
cause for believing that a
n has stolen store merchandise may detain such person in a
reasonable manner for
:easonable length of time.
If Martha sues K-Mart for false imprisonment, do you think she
would win

.:ase, or do you think K-Mart has a valid defense? Why?
2.. Review the situation of Mrs. Day presented at the beginning
of the
;-er. What torts do you think Mr. Day committed?
3. Prosenjit Podar killed Tatiana Tarasoff. Two months earlier
Prosenjit
_:old Dr. Lawrence Moore, a psychologist, that he intended to
kill Tatiana.
_ Ioore did not warn Tatiana or her parents of Prosenjit's
intention. What
; considerations would argue against finding the psychologist
liable? How
ou think an attorney representing Tatiana's parents would reply
to those
ents?
. The defendant company entered a float in a parade. As the
float traveled
.. the street, employees threw candy to the crowd. Children
running to collect
.:.2lldy injured a spectator. Develop an argument for why the
spectator should
owed to sue the company.
:. A grocery store customer was mugged on a sidewalk adjacent
to a
:- ing center. The mugging occurred immediately after the
customer left the
The sidewalk was owned not by the grocery store but by the
shopping

- ""' The grocery store knew of numerous similar muggings on
the sidewalk.
::ore employees used the sidewalk to carry bags to customers'
cars, and its
rovided that the store could hold sidewalk sales there. Analyze
whether
_ ocery store should be held liable for the customer's injuries .
. A young woman, Melissa, returned from a solo bicycling trip
on Cape
• find that her car would not start. A young man, Michael
Gentile, lent
- - cell phone so that she could call her parents. Her father, who
was a
r of AAA, called AAA and asked that a tow truck go to the
location of
.2ughter's disabled car. Two hours later the tow truck appeared.
The driver
- .'vielissa where she wanted her car towed but did not offer to
give her
275 •
a ride. Michael offered to give her a lift to her mother's house.
She acceptec...
Somewhere along the way Michael raped and killed her. The
parents have su
AAA for negligence. AAA has filed a motion to dismiss. How
do you think tn=

court ruled? Why?
7. Every year Camp Good Times holds a hike to the top of
Mount Sno
or to the top of Barton Hill. Of the two hikes the one up Mount
Snow is a
more arduous, but either can be accomplished in under an hour.
This past ye<l.:'
the campers, who ranged in age from seven to twelve, voted to
hike up Mou:::
Snow. The 50 campers and two camp counselors made it to the
top of the hill !:::
about half an hour with no problems. On the way back down,
however, eigh:-
year-old Timmy tripped over a large moss-covered log lying
across the path. As z
result of his fall he suffered a broken leg. His parents now want
to know wheth
they can successfully sue the camp for Timmy's injury. Please
evaluate their cla i:-::
based on Sauer v. Hebrew Institute of Long Island, Inc. (page
238).
8. Two crime victims were killed, having been shot. The
families wanted-
sue the handgun manufacturer under the theory that
manufacturers of handguw
negligently marketed them in such a way as to create an
underground mark
making it easy to obtain the guns. However, the plaintiffs were
not able -
identify which specific manufacturer made the handguns used in
the shootin
Should they be allowed to pursue their lawsuit and, if so,
against whom?

9. An alarm company delayed calling the fire department. By
the t il:G=
the firefighters arrived, the fire had advanced to such a stage
that one of cl:.~
firefighters was killed. The firefighter's widow sued the alarm
company, allegffi.=.
its negligent delay in calling in the fire resulted in her
husband's death. How
you think the court decided? Why?
10. Assume you are a legislator and want to draft a statute
dealing '"i -
social host liability. How would you fashion such a rule? For
example, wo·· -
you limit liability to those cases
a. where minors are involved?
b. where the host knows the guest is intoxicated?
c. where the host actually serves the alcohol? How would you
avoid
concern that finding liability in some cases would potentially
lead -
unlimited liability for social hosts?
11. Do you think a social host should be liable for accidents
caused
drivers who obtained alcohol from the social host? Why? For
example, consi
the follo_wing facts. Margaret Davis gave her daughter, a high
school studer:·
permission to hold a party. Davis did not keep alcoholic
beverages in her hom=.
and there were none on the night of the party. Before the party
began, Davis le-
During the unchaperoned party a 17-year-old guest obtained

beer brought to--
party by another guest. While driving home intoxicated, the
guest lost con
of his car and injured Ruth Langemann. Should Langemann be
allowed to
Davis for her injuries?
12. In McGuiggan v. New England Telephone & Telegraph Co.,
--
Massachusetts Supreme Judicial Court established a test for
when social h~-
will be held responsible for harm that comes to one of their
guests. Please re·i
the standard set by that court as given on page 247. Then think
about --
following hypothetical:
E. Remedies
enteen-year-old Sally held a party. She had some friends buy
two kegs of beer and
.:: them to the party. She paid for the kegs and was then
partially reimbursed by the
~ guests. At some point, four men whom she had not invited
appeared at the party.
--ey were visibly intoxicated and while at the party helped
themselves to Sally's beer.
y after the uninvited guests arrived, Tom, one of Sally's friends,
told her he was
>ing. She asked him to stay because she was apprehensive about
the four uninvited
Tom stayed and later was "sucker punched" by one of those

uninvited guests. Tom
--sued Sally for his injuries. Sally's attorney filed a motion to
dismiss.
How do you think the court ruled? Why?
1 3. Mr. Alack joined a local health club. He signed a two-page,
single-
contract that included the following language:
..ember assumes full responsibility for any injuries, damages or
losses and does hereby
y and forever release and discharge [the health club] from any
and all claims,
nds, damages, rights of action, or causes of action, present or
future ... resulting
or arising out of the Member's . .. use or intended use of said
gymnasium or the
-, ·ties and equipment thereof.
One day while he was exercising, the handle of a rowing
machine disen-
- from the weight cable and smashed into Mr. Alack's mouth. It
was discov-
-- that the machine's handle was not connected with the
necessary clevis pin
- - at the health club did not r~~JJ.i.rt' pt'r.i.rxJ.ic .'.wpectkn.IT
af 1ts" equipment.
would you argue that the release would not bar Mr. Alack from
suing the
- club for its negligent failure to maintain the rowing machine?

14. Before taking part in a horseback riding tour at the Loon
Mountain
..:,esrrian Center, Ms. Wright signed the following release:
::nderstand and am aware that horseback riding is a
HAZARDOUS ACTIVITY .
. . I therefore release Loon Mountain Recreation Corporation ...
FROM ANY
."L~ ALL LIABILITY FOR DAMAGES AND PERSONAL
INJURY TO MYSELF ...
:: ULTING FROM THE NEGLIGENCE OF LOON MOUNTAIN
RECREATION
RPORATION TO INCLUDE NEGLIGENCE IN SELECTION,
ADJUSTMENT
• ANY MAINTENANCE OF ANY HORSE.
While on the tour, the guide's horse kicked Ms. Wright in the
leg. Ms.
'!. t sued for negligence, arguing that the tour guide had failed
to control the
se after it had given signs it was about to "act out." How would
you argue
-~e release should not bar Ms. Wright from suing the tour
company?
15. One of the events at a local fair involved paying to ride a
mechanical
John Lilya watched as a rider was thrown from the mechanical
bull. John
paid his $5 and signed a release that read:
a knowledge that riding a mechanical bull entails known and
unanticipated risks

- h could result in physical injury. I expressly agree to accept
all the risks in this activ-
. .iy participation is purely voluntary, and I elect to participate
in spite of the risks.
- mounted the bull and was immediately thrown. He stood up
and got back
·-e bull. He was thrown again. This time when he fell, he
fractured his neck.
277 •
How do you think an attorney representing the fair sponsors
would have
that John assumed the risk of his injury?
16. First review the Irwin case beginning on page 252. Then
think a,:-
this hypothetical.
Jason was a tenth grader at Dartmouth High School, a
Massachusetts public schoo
One day last April three "youths" who did not attend the school
had a violent al=-
cation at the school with two of Jason's classmates. Later that
day the three youc::s
returned to the school, proceeded to a second-floor classroom,
and stabbed Jason :
death.
Jason's mother has sued the school for negligence, alleging that
it failed to maintai-

adequate security and failed to protect her son in the presence
of a known threat. T:
school has filed a motion to dismiss on two grounds: first, that
they are protected :.
the discretionary function exception to the Massachusetts Tort
Claims Act and seco--
that the attack was unforeseeable.
How do you think the court ruled? Why?
17. An amateur soccer game was played between high school-
aged pla.
Julian Nabozny was a goalie. David Barnhill was a forward for
the op
team. David was known for being a very rough player, having
acquired -
penalties than any other player on the team. Rather than
cautioning Dan.:
play a clean game, David's coach urged all his players to play as
hard as -
could and to "go for the kill."
During the game David kicked Julian in the head while Julian
was in:
session of the ball. Contact with a goaltender while he is in
possession of the
is a violation of FIFA (International Association Football
Federation - soc]
international governing body) rules, which governed the
contest.
When Julian's dad saw David kick his son in the head, he
jumped o
his chair, rushed onto the field, and hit David in the chin with
his fist, br
David's jaw.

Another parent, Mike Bishop, also rushed onto the field. Afraid
-
Julian might be hurt further, he scooped him up and carried him
off the ~
Unfortunately, when David had kicked Julian, he had broken his
neck.
Mike picked him up, the movement caused compression in
Julian's spinal
leaving him permanently paralyzed from the waist down.
a. Julian wants to sue David, the other player. In his complaint,
tort theory is Julian's attorney most likely to allege and what
have to prove for Julian to be successful?
b. Julian also wants to sue the coach. In his complaint, which
tort r.:-=-·
is Julian's attorney most likely to allege and what will he ha _
prove for Julian to be successful?
c. Finally, Julian wants to sue the parent who "helped" him. --
complaint, which tort theory is Julian's attorney most likely to
.::
and what will he have to prove for Julian to be successful?
d. For the court to allow David to recover against Julian's dad,
on
tort theory will David's attorney rely?
18. Return to the fact situation with which we opened this
chapteL :--=
your thoughts changed about whether Maria should be able to
sue De~

E. Remedies
.::"uries she suffered? What arguments do you think Maria's
attorney would
:nake? What counterarguments would you expect Dennis'
attorney to raise?
.9. A 15-year-old threw a 2.5 pound piece of concrete from an
overhead
It went through the windshield of the truck Barbara Collins was
driving.
:. :-esult, she suffered severe brain injuries. She sued the
manufacturer of the
- - under a theory of strict product liability, claiming that the
windshield was
·ve because its penetration resistance was inadequate. In turn,
the truck
- .:facturer argued that the juvenile's criminal conduct was a
superseding
" that relieved it of liability. Who do you think has the better
argument and
_J . Alison, a 14-year-old girl, attempted to spray her hair using
an aerosol
o AquaNet. When nothing came out, she cut open the can,
planning to
- ilie contents into an empty aerosol bottle. Unhappily, while
attempting this
a ion, she was standing next to a gas stove. The stove was not
on, but its
. light ignited the escaping hair spray, which in turn ignited
Alison. She sued

::::lallufacturer of AquaNet for failing to adequately warn about
the product's
- ability. Do you think she was successful? Why or why not?
Use Google, www.google.com, or go to socialhostliability.org
to research the
social host law in your state. Do you agree that adults providing
alcohol to
minors (even their own children) should be held liable if the
minor hurts him-
self or another? Also, should social hosts be subject to criminal
prosecution?
Now for the lighter side of the law. Go to
www.wackywarnings.com. Once at
the site, read about this year's winners. Do you agree that all of
the warnings
listed are "wacky" or do you think they serve a purpose?
Pages 207 through 216
1. How can the same set of facts result in both a tort and a
crime? Will every tort
also create criminal liability?
2. How can a tort be distinguished from a contract action?
3. What are the elements of assault? Of battery?
-+. How can there be an assault and no battery? A battery
without an assault?
·. Review the situation of Mrs. Day presented at the beginning
of the chapter. Do
you think she has a valid claim for either assault or battery?
Why?

" · What are the elements of false imprisonment?
- . When does a shopkeeper have a valid defense to a detained
person's aliegation
of false imprisonment?
279 •
8. What are the elements of libel? The defenses?
9. In New York Times v. Sullivan, what limitations did the
Supreme Court pu
the ability of public figures to sue the press?
10. Assume Robin Barker dictates a letter to her secretary. The
letter is addresse_
to Ms. Wanda Jones. In the letter Ms. Barker tells Ms. Jones
that she thinks ~.
Jones is a thief. The secretary types and mails the letters to Ms.
Jones. Can ~.
Jones sue for defamation? What element is arguably missing?
11. A grocery store employee followed a customer to the
parking lot and acc~-
her of having meat in her purse. The customer opened her purse
and sho
that she did not have any meat, and the employee left. Several
passersby hea.:-_
the remarks, but the plaintiff could not identify any of them.
Should the
tomer be barred from proceeding with a defamation suit? Why?

Pages 221 through 22 7
12. How do the torts of defamation and invasion of privacy
differ?
13. What must a plaintiff prove to win a case of intentional
infliction of emotio-
distress?
Pages 22 7 through 23 7
14. What are the four basic elements of a negligence claim?
15. Do you think the result in the Cordas case would have been
different if~~
Cordas and her two children had been in the taxicab rather than
standing --
the sidewalk? Why?
16. Explain the doctrine of res ipsa loquitur.
17. When might the court find that a defendant was negligent
per se?
18. What is the difference between "but for" causation and
proximate cause?
19. Describe the three basic affirmative defenses to negligence.
How do they d.i.u~
from each other?
20. A state court judge approved a mother's petition to have her
"somew.
retarded" daughter sterilized. The daughter was told that she
was to have ;:;
appendix removed. Later the daughter married and found out

that she h.:
been sterilized. She sued the judge. How do you think the court
resolved -
case?
21. A public high school required parents to sign a release-of-
liability form be-
allowing their children to participate in interscholastic athletics.
The par
. objected to having to sign the form and went to court,
requesting thar
school district be enjoined from requiring the release. How do
you think
court decided the issue?
22. State building codes set forth requirements for safe
buildings. If a buil
inspector fails in his duty to carefully inspect a building, do you
think a r
chaser of such premises would have a cause of action for buying
a building --
was developed in violation of the governmental requirements?
Why?
23. How is recklessness defined? How does it differ both from
intentional con
and negligence?
E. Remedies
2-. In what areas of tort law are you most likely to see the

courts applying a reck-
lessness standard? Why?
_ -. Describe the three theories that a plaintiff can use to sue a
manufacturer when
harmed by that manufacturer's product.
_ . A woman keeps a pit bull dog as a pet. One day the neighbor
children acciden-
tally throw a Frisbee into her yard. In attempting to retrieve the
Frisbee one
of the children is severely bitten by the dog. Should the dog's
owner be held
strictly liable? Why?
_ -. Manuel Sanchez began smoking at the age of ten. Over his
lifetime he smoked
several different brands of cigarettes. At the age of 53 he was
diagnosed with
throat cancer and died within six months. His widow sued nine
different cig-
arette manufacturers on the theory of strict liability. To win her
case, what
would Mrs. Sanchez have to prove? Do you think she was
successful?
_ . Five-year-old Daphne took a disposable lighter from her
mother's purse that
was stored on the top shelf of a closet in a bedroom in her
grandparents'
home. While playing with the lighter, she started a fire that
severely burned her
two-year-old brother, Ruben. While the lighter manufacturer
produced lighters

both with and without child safety mechanisms, this lighter did
not have one.
The children's mother sued the manufacturer of the lighter. If
you represented
the mother, how would you argue the manufacturer should be
held liable for
the boy's injury? How do you think the lawyers for the
manufacturer would
respond?
_ Y. What are the three basic types of damages that a plaintiff
can recover in a tort
action, and what is the purpose of each?
. What is the difference between general and special damages?
-· What limits has the United States Supreme Court placed on
the ability of a
plaintiff to recover for punitive damages?
281 •

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